CREW v. Cheney Et Al: Regarding VP Records: 12/31/08 - Cheneys Reply in Support of Motion To Dismiss

Case 1:08-cv-01548-CKK Document 43 Filed 12/31/2008 Page 1 of 39
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No.: 08-1548 (CKK)
)
THE HONORABLE RICHARD B. CHENEY, )
VICE PRESIDENT OF THE UNITED STATES )
OF AMERICA, et al., )
)
Defendants. )
__________________________________________)
DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISMISS OR,

IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT, AND MEMORANDUM OF
POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ CROSS MOTION
INTRODUCTION
Because of the “separation of powers concerns that were implicated by legislation
regulating the conduct of the [Vice] President’s daily operations,” Congress limited the right of
outsiders to “interfere with [the Vice President’s] recordkeeping practices” by precluding private
enforcement of the Presidential Records Act (“PRA”). Armstrong v. Bush, 924 F.2d 282, 290
(D.C. Cir. 1991) (“Armstrong I”). As defendants explained in their opening brief, remaining
faithful to “the political compromises” required to pass the PRA deprives this Court of subject
matter jurisdiction over plaintiffs’ claims because the PRA does not furnish private parties with
either a right to seek review of an incumbent Vice President’s compliance with the PRA or a
remedy for any perceived violations, and precludes judicial review under the Administrative
Procedure Act, 5 U.S.C. § 701. See Defs.’ Mot. at 10-25.

It is only through a misinterpretation of controlling law, an insistence on interpreting
precedent divorced from context, and a failure to acknowledge the facts in this case that plaintiffs
attempt to oppose defendants’ opening motion. As threshold matters, the PRA does not furnish a
cause of action upon which to invoke this Court’s jurisdiction, or prescribe “ministerial” duties
appropriate for mandamus review. Despite plaintiffs’ effort to distance this matter from that
decided by the Supreme Court in Kissinger v. Reporters Committee for Freedom of Press, it
remains that the PRA merely “‘proscribes certain conduct’ and does not ‘create or alter any civil
liabilities’” necessary to support a cause of action. 445 U.S. 136, 148 (1980). Armstrong II does
not change the conclusion either, as the D.C. Circuit’s analysis about the FRA- and FOIA-
claims before it cannot be read more broadly than the context in which the Court’s decision was
written, as plaintiffs urge this Court to do. Armstrong v. Bush, 1 F.3d 1274 (D.C. Cir. 1993)
(Armstrong II). Simply put, it is Armstrong I that directly controls whether causes of action
under the PRA may be raised in federal court to seek review of an incumbent vice president’s
compliance with its terms. As the D.C. Circuit concluded there, PRA claims may not.
Without a cause of action, no declaratory judgment relief is available, even under House
Judiciary Committee v. Miers, et al. upon which plaintiffs rely as purportedly contrary authority.
558 F. Supp. 2d 53, 81 (D.D.C. 2008), on appeal Civ. App. No. 08-5357 (D.C. Cir.).
Accordingly, this Court lacks subject matter jurisdiction and plaintiffs’ claims for declaratory
relief must be dismissed. Similarly, plaintiffs fail to establish mandamus jurisdiction because the
definitional provision of the PRA in section 2201 lacks any requirement that the Vice President
perform the type of “single specific act” necessary for mandamus relief. Nat’l Treasury
Employees Union v. Nixon, 492 U.S. 587, 608 (D.C. Cir. 1974) (“The law required the
2
performance of a single specific act; and that performance, it was held, might be required by
mandamus.”).
Even if plaintiffs had succeeded in rebutting those threshold legal bars to their PRA
claims, the record establishes that they lack any injury upon which to stake their claims. First,
plaintiffs continue to fail to establish that they have the type of imminent injury necessary to
establish Article III standing. Nor have they established injury in fact. The substantial sworn
testimony in the record before this Court is incontrovertible: there are no vice presidential
records that the Office of the Vice President has excluded from the scope of the PRA through its
guidelines or policies regarding vice presidential records, and plaintiffs can establish no injury or
legally cognizable interest to support their claims. Defs.’ Mot. at 29-36. Rather, the OVP relies
on the PRA definition of “presidential records” as the controlling authority for managing vice
presidential records, and treats all records of the Vice President and his office that relate to or
have an effect upon the exercise of his constitutional, statutory, and other official or ceremonial
duties as subject to the PRA.
Plaintiffs’ adherence to their claim that the Vice President performs functions aside from
functions (1) “specially assigned to the Vice President by the President in the discharge of
executive duties and responsibilities” or (2) as President of the Senate—and that the Vice
President therefore generates records that are not preserved under the PRA—rests on a flatly
contradicted interpretation of “specially assigned.” Plaintiffs entirely disregard the considerable
evidence defendants offered in their opening brief to rebut plaintiffs’ interpretation of “specially
assigned,” and further ignore two supplemental declarations and three deposition transcripts that
are in the record. See Defs.’ Mot. at 34. In any event, it is defendants’ interpretation that
matters, because that is the interpretation being followed in complying with the OVP’s PRA
3
obligations. At bottom, the OVP has not narrowed and redefined the scope of records covered
by the PRA or endeavored “to rewrite the statutory definition of vice presidential records found
at 44 U.S.C. § 2201(2).” Pls.’ Opp’n at 25. It has, instead, complied fully with it by treating as
subject to the PRA all records of the Vice President and his office that relate to or have an effect
upon the exercise of his constitutional, statutory, and other official or ceremonial duties.
Plaintiffs’ refusal to acknowledge the record does not establish their injury and further
does not undermine defendants’ entitlement to summary judgment if the Court does not dismiss
all of plaintiffs’ claims. As the Supreme Court instructs, “mere allegation or denials” are
inadequate to oppose summary judgment; “discredited testimony is not normally considered a
sufficient basis for drawing a contrary conclusion”; and instead a plaintiff “must present
affirmative evidence in order to defeat a properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986). Plaintiffs’ deficient response to
defendants’ statement of material facts and their own conclusory and inadequate statement of
facts only confirm what defendants have been attempting to establish since the inception of this
case: the Office of the Vice President relies on recordkeeping guidance and policies that fully
conform with the terms of the PRA.
ARGUMENT
I. The PRA Does Not Provide A Judicially-Enforceable Right to Pursue Private Actions in
Federal Court Seeking Review of an Incumbent Vice President’s Compliance With the
PRA, Depriving this Court of Subject Matter Jurisdiction Over Claims One and Two
A. The PRA Does Not Contain A Judicially Enforceable Right To Seek Review of an
Incumbent Vice President’s Compliance With the PRA
“Record-keeping requirements of the FRA are subject to judicial review and
enforcement; those of the PRA are not.” Armstrong v. Bush, 90 F. 3d 553, 556 (D.C. Cir. 1996)
(Armstrong III) (emphasis added). Notwithstanding this clear proscription on PRA-based
4
claims, plaintiffs nonetheless insist that the “structure, language and legislative intent of the PRA
support the creation of a private right of action.” Pls.’ Opp’n at 17. Not one, however, supports
the existence of a private right of action or a judicially remediable right under the PRA amenable
to declaratory judgment relief.
In assessing whether a judicially-enforceable right was in fact intended in a statute, the
Supreme Court looks for the existence of explicit “right or duty-creating language”; has
repeatedly made clear the critical difference between “‘rights-creating’ language” and language
granting powers or giving “directive[s] to federal agencies,” Alexander v. Sandoval, 532 U.S.
275, 286-87 (2001); and has found rights-creating language only in text “phrased in terms of the
persons benefitted.” Cannon v. Univ. of Chicago, 441 U.S. 677, 290 n.13 (1979); see also
Sandoval, 532 U.S. at 288-89. Thus, it is “rights, not the broader or vaguer ‘benefits’ or
‘interests,’” which may be judicially enforced. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).
“Statutes that focus on the person regulated rather than the individuals protected create no
implication of an intent to confer rights on a particular class of persons.” Sandoval, 532 U.S. at
289 (internal quotation marks and citation omitted); see also Nat’l Treasury Employees’ Union v.
Campbell, 654 F.2d 784, 790 (D.C. Cir. 1981). Indeed, the Supreme Court instructs that “there
‘[is]. . . far less reason to infer a private remedy in favor of individual persons’ where Congress,
rather than drafting the legislation with ‘an unmistakable focus on the benefitted class,’ instead
has framed the statute simply as a general prohibition or a command to a federal agency.”
Universities Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 772 (1981).
The Supreme Court’s careful differentiation between explicit rights-creating language
and incidental “benefits” or “interests” in statutory language forecloses any private right of
action here under the PRA. See Defs.’ Mot. [39] at 10-15; 18-23. As with the FRA analyzed in
5
Kissinger v. Reporters Committee for Freedom of Press, the PRA merely “‘proscribes certain
conduct’ and does not ‘create or alter any civil liabilities.’” 445 U.S. 136, 148 (1980) (quoting
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)); see also Armstrong v.
Bush, 721 F. Supp. 343, 348-49 (D.D.C. 1989), rev’d in part on other grounds, 924 F.2d 282
(D.C. Cir. 1991) (Armstrong I). The “PRA accords the [Vice] President virtually complete
control over his records during his term in office,” Armstrong I, 924 F.2d at 290, and
contemplates only either administrative action or congressional oversight “as the primary
enforcement mechanisms” of its terms. Armstrong v. Bush, 721 F. Supp. at 349. Accordingly,
the PRA’s “operations neither create nor infringe directly upon private interests” such that
“private plaintiffs may not create federal court jurisdiction through direct reliance upon the
PRA.” Id.
Plaintiffs’ claim that they “are among the intended beneficiaries of the PRA” is therefore
insufficient to support a private right of action under the PRA or to locate a judicially remediable
right. Pls.’ Opp’n at 17; see id. at 18. Even assuming that the PRA’s terms benefit “scholars,
journalists, researchers and citizens of our own and future generations,” Armstrong I, 924 F.2d at
290 (quoted in Pls.’ Opp’n at 17-18), the PRA does not contain the “unambiguously conferred
right” necessary to seek judicial enforcement of the Vice President’s compliance with its terms.
Gonzaga University, 536 U.S. at 283. Indeed, section 2201 upon which plaintiffs heavily rely
contains only definitions of “documentary material,” “Presidential record,” “personal records,”
“Archivist,” and “former President.” 44 U.S.C. § 2201. Nothing in that provision confers
plaintiffs with the “unambiguous” right necessary to support a private right of action. Section
2202, which provides for United States ownership and control of Presidential records, similarly
fails to contain any rights-creating language that would allow plaintiffs to sue for compliance
6
with the PRA’s terms. Compare Pls.’ Opp’n at 17-18. Section 2203 provides the contours for
the “management and custody of Presidential records”; Sections 2204 and 2205 prescribe
restrictions on access to presidential records; Section 2206 tasks the Archivist with promulgating
regulations for disclosure of presidential records once he has assumed custody of them; and
Section 2207 states simply that “vice-presidential records shall be subject to the provisions of
this chapter in the same manner as Presidential records.” Nothing in the PRA provides a private
right to seek review of the Vice President’s compliance with the terms of the PRA.1
Nor is Kissinger distinguishable on the grounds plaintiffs assert. Pls.’ Opp’n at 16-18.
First, plaintiffs contend that Kissinger “did not hold that the FRA creates no enforceable rights”
and “left open other issues such as ‘what remedies might be available to private plaintiffs
complaining that the administrators and the Attorney General have breached a duty to enforce
the Records Act.’” Pls.’ Opp’n at 16 (quoting Kissinger). As made clear in Kissinger, but
omitted from plaintiffs’ quotation of it, the Supreme Court did not leave open whether a private
right under the FRA may exist, but left open only whether other remedies might be available
under the Administrative Procedure Act. Kissinger, 445 U.S. at 150 n.5 (“We need not decide
what remedies might be available to private plaintiffs complaining that the administrators and the
Attorney General have breached a duty to enforce the Records Act, since no such action was
brought here. See 5 U.S.C. §§ 704, 701(a)(2), 701(1).”) (emphasis added); accord Am. Friends
Serv. Comm. v. Webster, 720 F.2d 29, 53 (D.C. Cir. 1983) (“Second, Kissinger stated that it was
not deciding the question of whether Congress intended private parties to have any remedies
1
Section 2204(c)(1) provides that presidential records in the Archivist’s legal custody “shall be
administered in accordance” with section 552 of title 5, FOIA. But that provision contains no rights-
creating language to support a private right to seek review of an incumbent Vice President’s compliance
with the terms of the PRA. See, e.g., Kissinger, 445 U.S. at 150-151 (refusing to imply a right of action
in the FRA notwithstanding a right under FOIA to agency records required to be preserved under the
FRA).
7
under the APA for agency actions in breach of a duty to enforce the records laws.”) (emphasis
added).2
Second, plaintiffs’ asserted “differences between the FRA and the PRA” either do not
exist or are immaterial to the Supreme Court’s conclusion in Kissinger that a private right is
unavailable under the FRA, and by logic, the PRA. Pls.’ Opp’n at 17. For example, like
plaintiffs’ avowed interest in presidential records, the “the legislative history of the records acts
[in the FRA] supports a finding that Congress intended, expected, and positively desired private
researchers and private parties whose rights may have been affected by government actions to
have access to the documentary history of the federal government.” Am. Friends Serv. Comm.,
720 F.2d at 57; compare Pls.’ Opp’n at 17 (“While the FRA was intended solely to benefit the
agencies themselves and the Federal Government as a whole, the PRA was intended to benefit
the public[.]”). Nonetheless, such asserted “interests” in access to government records did not
rise to the level of explicit rights necessary to support a private right in Kissinger under the FRA
and cannot support a private right under the PRA.
Similarly, the PRA is not unique in “expressly and unambiguously delineat[ing] the kinds
of records” that are subject to its recordkeeping terms as plaintiffs suggest. Pls.’ Opp’n at 17.
The FRA, too, contains a definition of records subject to the FRA’s terms, 44 U.S.C. § 3301,
and, like section 2202 of the PRA, provides that “records of the United States government may
not be alienated or destroyed except under this chapter.” 44 U.S.C. § 3314. Nonetheless, the
2
Of course, here, plaintiffs disavow reliance on the APA, as they must, for relief from the Vice President,
the OVP, and EOP. See Pls.’ Opp’n at 2 (“Plaintiffs rely on the APA only for their claims against the
Archivist and NARA, while claims against defendants Cheney, the OVP and the Executive Office of the
President (“EOP”) seek a declaratory judgment under the Declaratory Judgment Act and a writ of
mandamus.”); id. at 5 n.7; id. at 19. Moreover, unlike the limited APA review permissible under the
FRA, the PRA precludes judicial review under the APA. Armstrong I, 924 F.2d at 290; see also Defs.’
Mot. at 18-23.
8
Supreme Court appropriately concluded that Congress failed through those definitional
provisions to express an unambiguous intent to provide private plaintiffs with private rights to
seek judicial enforcement of its terms. The same is true here under the PRA.
B. Armstrong I, Armstrong II and Armstrong III Confirm the Absence of a Judicially

Enforceable Right To Seek Review of an Incumbent Vice President’s Compliance
With the PRA
In an effort to establish a private right, plaintiffs unsuccessfully strain to divorce the D.C.
Circuit’s rulings in Armstrong I and Armstrong II from the context in which they were written.
Notwithstanding plaintiffs’ assertions, it remains that Armstrong I is controlling here.
“[P]ermitting judicial review of the [Vice] President’s compliance with the PRA would upset the
intricate statutory scheme Congress carefully drafted to keep in equipoise important competing
political and constitutional concerns.” Armstrong I, 924 F.2d at 290. Accordingly, “the PRA
precludes judicial review of the President’s recordkeeping practices and decisions.” Id. at 291.
As defendants explained in detail in their opening brief, Armstrong II did not alter that
conclusion. See Defs.’ Mot. at 22-23. Rather Armstrong II permitted review of presidential
records guidelines “for the limited purpose of ensuring that they do not encompass within their
operational definition of presidential records materials properly subject to the FOIA.”
Armstrong II, 1 F.3d at 1290 (emphasis added). As the Armstrong II court explained, “Congress
expressly intended when it passed the PRA to preserve unchanged the coherent body of law that
had been developed under the FOIA, and it is that body of law that provides the basis for our
limited review of the definition of presidential records materials that would otherwise be
subject to FOIA.” Id. at 1294. Thus, contrary to plaintiffs’ contention, the ruling on the merits
in Armstrong II differed significantly from the “relief plaintiffs seek here.” Pls.’ Opp’n at 23.
There, the FRA- and FOIA-based claims relied on the “body of law that had been developed
9
under FOIA” to provide the basis for judicial review of the definition of presidential records
materials in the EOP guidelines. Armstrong II, 1 F.3d at 1290. Here, by contrast, plaintiffs seek
review of their PRA-based claims on the basis of law provided solely by the PRA, not the “body
of law that had been developed under FOIA” or the FRA. Id. Those PRA-based claims, as the
Armstrong I court concluded and the Armstrong III court confirmed, are not judicially
reviewable. See Defs.’ Mot. at 18-23.
Nonetheless, plaintiffs insist that this Court broadly rely only on the “language of
Armstrong II,” rather than the context before the panel in Armstrong II, to reject the “narrow
application” compelled by a proper understanding of the FRA- and FOIA-based claims at issue
in that case. Pls.’ Opp’n at 21-22. But the language of Armstrong II cannot be cleaved from its
context, for the court in Armstrong II could decide only the facts of the case before it consistent
with its limited Article III role. Valley Forge Christian College v. Americans United for
Separation of Church & State, 454 U.S. 464, 471 (1982). Indeed, without the FRA- or FOIA-
based claims that provided the court in Armstrong II with subject matter jurisdiction under the
APA, no statutory basis would exist to furnish that court with jurisdiction. Armstrong I, 924
F.2d at 290. Of course, here, plaintiffs do not rely on the FRA, FOIA or any other law to seek
relief from the Vice President, the OVP or EOP.
Plaintiffs also maintain that Armstrong I may be explained as a limit solely to challenges
to the President’s “creation, management and disposal decisions,” rather than guidelines
designating which materials are subject to the PRA in the first place. Pls.’ Opp’n at 20, 22.
Although the Armstrong II court did distinguish between “creation, management and disposal
decisions described in the provisions of 44 U.S.C. § 2203” and “the initial classification of
10
materials as presidential records,” it did so in the context of describing the limits of review for
the FRA- and FOIA-based claims before it.
Moreover, the Armstrong I panel rejected judicial review of PRA-based claims identical
to those plaintiffs raise here. In Armstrong I, the D.C. Circuit rejected court authority to “enjoin
disposal of PROFS information [that plaintiffs alleged was record material under the FRA and
PRA], and to direct the President (as head of the EOP) and the NSC to properly classify the
information under either the PRA or the FRA, and to thereafter subject it to the ‘life cycle’
contemplated by both statutes.” Armstrong v. Bush, 721 F. Supp. at 347 (emphasis added); see
also Armstrong I, 924 F.2d at 286-87 (describing suit as seeking, in part, a “declaration that
many of the documents stored in the PROFS system . . . are presidential records”).3 The panel
in Armstrong I thus rejected judicial review of the President’s classification of information
under the PRA for the PRA-based claim, not simply challenges to the “creation, management
and disposal” decisions of the President. Id. Accordingly, the conclusion in Armstrong I that
PRA claims are not reviewable is directly controlling here. Plaintiffs may not rely on an
improper application of language from Armstrong II to resurrect what the panel in Armstrong I
expressly eliminated.
Neither this Court’s preliminary assessment in its earlier opinions nor the court’s opinion
in CREW v. EOP, Civ. No. 07-1707 (D.D.C.), changes the conclusion that PRA-based claims are
3
See also Ex. 6, Armstrong v. Bush, Civ. No. 89-0142 (D.D.C.) Am. Compl. [27] at 11 ¶ 1 (seeking
declaration that records in the PROFS system are “presidential records” subject to the PRA) (filed
March 14, 1989); id., Pls.’ Opp’n to Defs.’ Mot. to Dismiss [26] (excerpts) at 44-46 (contending that
President’s “own directive to the EOP staff demonstrates the unlikelihood that all of the PROFS
information that constitutes ‘Presidential records’ has been printed out, since it defines ‘nonrecord
material’ as information that has not been ‘’made accessible to others on the staff.’ . . . Therefore, under
defendants’ own definition, the NSC and EOP are in violation of the Presidential Records Act which
requires them to maintain such information[.]”); Pls.’ Resp. to SMF (excerpts) ¶ 6 (“However, they
dispute defendants’ conclusion that the ‘non-record’ material referred to therein is not subject to the
Presidential Records Act. This is a matter of law that must be decided by the Court.”).
11
foreclosed by Armstrong I as plaintiffs contend. See Pls.’ Opp’n at 21. Plaintiffs’ suggestion
that this Court’s initial analysis—without the benefit of full briefing on a motion to dismiss, see,
e.g., Mem. Op. [16] at 15 n.3 (Sept. 20, 2008); Mem. Op. [27] at 15 (Oct. 5, 2008)—must control
the disposition of the jurisdictional issues now is without merit. Moreover, the court’s opinion in
CREW v. EOP is entirely consistent with the FRA- and FOIA-based exception permitted in
Armstrong II. Mem. Op. [90] at 8-9, CREW v. EOP, et al., Civ. No. 07-1707 (D.D.C. Nov. 10,
2008) (HHK/JMF). There, plaintiffs
are not challenging the defendants’ failure to comply with PRA obligations nor
seeking relief for any records covered by the PRA. Rather, plaintiffs’ claims
request “that federal and presidential materials be maintained separately, rather
than in commingled form as is currently the case, because there are separate and
differing obligations that attach to federal and presidential records.”
Id. (quoting Armstrong II). The district court’s dictum that the PRA allows “limited review to
assure that guidelines defining Presidential records do not improperly sweep in nonpresidential
records” is therefore fully consistent with the lines drawn in Armstrong I and Armstrong II. Id.
Rather than support plaintiffs’ request for review of its PRA-based claims, the court’s reasoning
in CREW v. EOP, et al. instead confirms that Armstrong II is limited to review of presidential
records guidelines for appropriately pled FRA- and FOIA-based claims.
Although plaintiffs do not rely on it for support, the district court decision in American
Historical Association v. Peterson bears mention. 876 F. Supp. 1300 (D.D.C. 1995) (CRR),
appeal voluntarily dismissed by United States, Civ. App. No. 95-5124 (Dec. 15, 1995). In that
case, plaintiffs sued the Archivist of the United States to challenge a Memorandum of
Agreement reached by then-President George H.W. Bush and the Archivist on the last day of the
President’s administration. That agreement purported to provide then-President Bush with
“exclusive legal control over all Presidential information, and all derivative information”
12
transferred to the Archivist at the conclusion of his presidency. Id. at 1305. Plaintiffs sued for
relief under the PRA, Article II of the Constitution and the APA, claiming that the agreement
violated “the Archivist’s compliance with the mandates of the PRA.” Id. at 1315. In concluding
that the court maintained jurisdiction over plaintiffs’ PRA-based claims, the court reviewed the
limits of Armstrong I and Armstrong II and concluded that neither prohibited judicial review of
guidelines categorizing presidential records as personal or presidential after the President’s term
in office.
Significantly, the court explained that, “[w]hile the Armstrong decisions preclude judicial
review of the President’s compliance with the PRA during his term in office, they did not
address judicial review of the Archivist’s compliance with her obligations under the PRA when
she takes custody of Presidential records at the conclusion of the President’s term.” Id. at 1315
(emphases in original); see also id. at 1314 (“[T]he PRA sets forth different provisions for the
disposal of Presidential records during a term of office from those governing the disposal of
Presidential records after a term of office.”); id. (“There is thus an unambiguous distinction
made in the Act between an incumbent President’s disposal of Presidential records while in
office, and the Archivist’s disposal of Presidential records following a term in office.”); id. at
1314-1315 (“A careful reading of the Armstrong I and Armstrong II opinions demonstrates that
the Court of Appeals’ holdings regarding judicial review of the President’s compliance with the
PRA do not extend to preservation and disposal provisions applicable after a President has left
office); id. at 1315 (“The Court therefore declines to refuse judicial review of the Archivist’s
compliance with the PRA’s disposal provisions applicable after a President leaves office.”).
Whatever the validity of the cause of action accepted by the court in American Historical
Association, at a minimum, it is indisputable that plaintiffs here do not raise the type of claims
13
adjudicated there. Nothing in American Historical Association supports judicial review of PRA-
based claims of the incumbent Vice President’s recordkeeping practices. And to the extent the
district court’s decision in American Historical Association may be read more broadly, such a
reading is foreclosed by the D.C. Circuit’s unambiguous holding that the record-keeping
requirements of the PRA are not subject to judicial review. Indeed, only a year later after the
district court issued its decision in American Historical Association, the D.C. Circuit again
confirmed that “[r]ecord-keeping requirements of the FRA are subject to judicial review and
enforcement; those of the PRA are not.” Armstrong III, 90 F. 3d at 556.
Lacking supporting language in the PRA, and in the face of adverse D.C. Circuit
precedent, plaintiffs resort to unsupportable policy arguments to claim a right to judicial relief
under the PRA. For example, plaintiffs contend that “it is inconceivable that Congress would
have enacted a statute precisely to impose on the president and vice president the unambiguous
mandate to preserve all of their records, . . . but disallow a lawsuit seeking” review of its terms.
Pls.’ Opp’n at 18. Under controlling Supreme Court law, however, absent an intent to create a
judicially-enforceable right, “a cause of action does not exist and courts may not create one, no
matter how desirable that might be as a policy matter[.]” Sandoval, 532 U.S. at 286-87. As
defendants established in their opening brief and reinforce here, no such intent exists in the
language, structure or history of the PRA.
Similarly, plaintiffs claim a fear that the lack of judicial relief will render the PRA a
nullity, providing defendants the “carte blanche” to defy the terms of the PRA purportedly
rejected in Armstrong II. See Pls.’ Opp’n at 23; see also id. at 1 (urging the Court to reject
“precisely the carte blanche that the D.C. Circuit denied to the president and, by implication, the
vice president in [Armstrong II]”). As the Circuit explained, however, Congress deliberately
14
“declined to give outsiders the right to interfere with White House recordkeeping practices,”
instead relying “on the fact that subsequent [Vice] Presidents would honor their statutory
obligations to keep a complete record of their administrations,” Armstrong I, 924 F.2d at 290-91,
just as this Vice President has done. See Defs.’ Mot. at 29-36;38-40; Defs.’ Statement of
Material Facts ¶¶ 2-5. The D.C. Circuit explained that it was not within their right to “second-
guess that decision or upset the political compromises it entailed.” Armstrong I, 924 F.2d at 291.
It follows that plaintiffs similarly cannot second-guess that precise compromise through the
instant suit.4
C. Plaintiffs’ Declaratory and Mandamus Claims Against the Vice President, the OVP
and EOP Must Be Dismissed
Because plaintiffs lack a cause of action or a judicially remediable right in the PRA, the
Court lacks subject matter jurisdiction to entertain plaintiffs’ claims. As defendants explained in
their opening brief, the absence of a cause of action in the PRA deprives this Court of subject
matter jurisdiction under the Declaratory Judgment Act. See Defs.’ Mot. at 13; Schilling v.
Rogers, 363 U.S. 666, 677 (1960).5 Although plaintiffs expend considerable effort in describing
4
Plaintiffs’ claim that Armstrong II rejected a “carte blanche” right for presidents and vice presidents to
manage their records is misleading. As defendants explained in their opening brief and above, the D.C.
Circuit provided solely that a “narrow, clearly defined limitation on the scope of the PRA is absolutely
essential to preventing the PRA from becoming a potential presidential carte blanche to shield materials
from the reach of the FOIA.” Armstrong II, 1 F.3d at 1292. By divorcing the phrase from the remainder
of the sentence, plaintiffs ascribe an expanded meaning to Armstrong II that is supported neither by the
language nor the context of the decision. Here, there is no claim that the Vice President’s policies “shield
material from the reach of the FOIA” and the “narrow, clearly defined limitation on the scope of the
PRA” discussed in Armstrong II does not apply.
5
See also Villasenor v. Am. Signature, Inc., Civ. No. 06-5493, 2007 WL 2025739, *6 (N.D. Ill. July 9,
2007) (“Where, as here, there is no private right of action available for an alleged statutory violation, a
declaratory judgment claim cannot proceed.”); Debartolo v. Healthsouth Corp., Civ. No. 06-2542, 2006
U.S. Dist. LEXIS 80288, *13-14 (N.D.Ill. Oct. 17, 2006) (because there is no private right of action under
the Medicare anti-kickback statute, plaintiff may not continue with a declaratory judgment action because
permitting plaintiff to continue with that claim “would be equivalent to allowing a private cause of action
where one does not exist”); Mid-Atlantic Soaring Ass’n v. FAA, Civ. No. 05-2110, 2006 WL 1892412,
*5 (D. Md. June 29, 2006) (“[T]he AAIA does not provide a private right of action, and therefore cannot
15
the decision currently up on appeal in House Judiciary Committee v. Miers, et al. to claim that no
private right of action is necessary under the PRA to pursue declaratory relief, the court there
acknowledged that “in most cases a plaintiff would need to identify a statutory (or a common
law) cause of action to proceed in federal court, as otherwise there would be no basis for the
plaintiff’s asserted right to relief.” 558 F. Supp. 2d 53, 81 (D.D.C. 2008) (emphasis in original),
on appeal Civ. App. No. 08-5357 (D.C. Cir.). “But where the Constitution is the source of the
right allegedly violated, no other source of a right—or independent cause of action—need be
identified.” Id. Whatever the vitality of the court’s pronouncement on the availability of
declaratory relief for Constitutional claims, plaintiffs’ alleged source of rights here is statutory,
not constitutional, and even House Judiciary Committee requires a “statutory (or a common law)
cause of action to proceed in federal court.” Id. (emphasis added); see also Pls.’ Opp’n at 15-16
(‘[H]ere the PRA is the source of the right plaintiffs seek to advance through the DJA.”).
The need for a statutory cause of action is consistent with the well-established
understanding that the Declaratory Judgment Act “does not provide a source of jurisdiction
which is independent of substantive federal law.” Gibraltar P.R., Inc. v. Otoki Gp., Inc., 104
F.3d 616, 619 (4th Cir. 1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1, 16-17 n.14 (1983)). Although plaintiffs contend that it is undisputed that this Court has
serve as an independent basis of jurisdiction.”); Johnson v. Milwaukee County, Civ. No. 04-242, 2006
U.S. Dist. LEXIS 6892, *8, n. 1 (E.D.Wis. Feb.1, 2006) (“Johnson's claim for declaratory judgment on
his HIPAA claim cannot proceed [because there] is no private right of action under HIPAA.”); Gen.
Maritime Mgmt., LLC, v. St. Shipping & Transport, Inc., Civ. No. 04-4050, 2004 WL 1320893, *3
(S.D.N.Y. June 10, 2004); Williams v. Nat'l School of Health Tech ., Inc., 836 F. Supp. 273, 281
(E.D.Pa.1993) (“[T]here is no private right of action under the [Higher Education Assistance Act of
1965]. Allowing plaintiffs to proceed in a declaratory judgment action with the HEA as the source of the
underlying substantive law is tantamount to allowing a private cause of action. The
Declaratory Judgment Act cannot be used to circumvent the enforcement mechanism which Congress
established.”); Walker v. Federal Land Bank of St. Louis, 726 F. Supp. 211, 217 (C.D.Ill.1989) (“[N]o
private right of action can be implied from the 1987 Act. Hence, we determine that we have no power to
render any declaratory judgment, since no case or controversy exists over which we have jurisdiction.”).
16
subject matter jurisdiction under 28 U.S.C. § 1331 over its declaratory judgment claims, see Pls.’
Opp’n at 14, section 1331 is unavailable where, as here, a federal cause of action does not exist
pursuant to statute.6 See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States.”). An action
arises under the statutory laws of the United States within the meaning of § 1331 if “federal law
creates the cause of action.” Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804,
808 (1986); see also id. at 809 (“This case does not pose a federal question of the first kind;
respondents do not allege that federal law creates any of the causes of action that they have
asserted.”). It is insufficient to simply point to a federal statute, like the PRA, to obtain section
1331 jurisdiction, and plaintiffs must instead establish the existence of a cause of action arising
from the statute itself. See, e.g., Gen. Maritime Mgmt, LLC, 2004 WL 1320893 at *3 (“It may
not rely on its blanket assertion that ‘the Court demonstrably has jurisdiction over an action
involving the interpretation of 19 C.F.R. § 4.7(b), . . . [but must establish] that the federal
regulations create a private, federal cause of action or the case poses a substantial federal
question sufficient to confer subject matter jurisdiction.”). As demonstrated in detail in the
opening brief and above, plaintiffs cannot locate such rights in the PRA.7 Accordingly, this court
6
Notwithstanding defendants’ extensive arguments to the contrary, plaintiffs assert that “there is a clear
case or controversy” justifying declaratory judgment relief. As defendants established in their opening
brief, plaintiffs lack standing to pursue their claims and declaratory judgment relief is unavailable on
those grounds as well. Defs.’ Mot. at 25-37.
7
For the reasons that the PRA forbids judicial review and omits any implied private rights, see generally
Armstrong I, the Court should decline to exercise its discretion to entertain the declaratory judgment
claims. The Declaratory Judgment Act provides merely that a court “may declare the rights and other
legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added).
It does not require courts to issue declaratory judgments; rather, it “confers a discretion on the courts
rather than an absolute right upon the litigant.” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995); see
also Rooney v. Sec’y of Army, 293 F. Supp. 2d 111, 121 (D.D.C. 2003) (“Even where an action satisfies
the jurisdictional prerequisites for declaratory judgment, the decision to entertain a claim under the DJA is
committed to the discretion of the district court.”) (citing Wilton, 515 U.S. at 287).
17
lacks subject matter jurisdiction over plaintiffs’ declaratory judgment claim and it must be
dismissed.8
For the reasons that the PRA precludes judicial review under the APA, see Defs.’ Mot. at
18-25, plaintiffs’ request for a mandatory injunction ordering “Vice President Cheney and the
OVP to comply with their statutory duty to treat as subject to the PRA all records of the vice
president and his office that relate to the exercise of his constitutional, statutory and other official
or ceremonial duties” is also prohibited by the PRA itself.9 Am. Compl. ¶ 58; see also Dong v.
Chertoff, 513 F. Supp. 2d 1158, 1161-1162 (N.D. Cal. 2007) (explaining that jurisdictional
requirements for mandatory injunctive relief under the APA is the same for mandamus relief
under 28 U.S.C. § 1361). Although the absence of a private right of action under the PRA alone
does not necessarily foreclose mandamus relief, the language, structure and history of the PRA
precluding APA review likewise divests this Court of mandamus jurisdiction.
8
Plaintiffs contend that the absence of a cause of action under the PRA should be resolved under Rule
12(b)(6), rather than 12(b)(1). See Pls.’ Opp’n at 12-13. But because plaintiffs lack federal question
jurisdiction and the declaratory judgment act provides no independent source of jurisdiction, Rule
12(b)(1) dismissal for lack of subject matter jurisdiction is appropriate. Moreover, given that Kissinger
forecloses the existence of a cause of action under the PRA, the absence of a cause of action here is
jurisdictional. Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 89 (1998) (explaining that courts
lack subject matter jurisdiction over causes of action that are insubstantial or “foreclosed by prior
decisions of this Court”); Bell v. Hood, 327 U.S. 678, 683 (1946) (jurisdictional defect if federal claim is
“wholly insubstantial and frivolous”). In any case, defendants have not relied on any evidence outside the
pleadings to support these jurisdictional arguments. Accordingly, dismissal under Rule 12(b)(6) would be
appropriate as well. See Defs.’ Opp’n at 14 n.4.
9
Plaintiffs apparently seek broader relief than that requested in its Amended Complaint. In its brief,
plaintiffs contend that “this Court should transform its preliminary relief into final relief embodied in a
judgment for the plaintiffs.” Pls.’ Opp’n at 4. The preliminary relief does not require the Vice President
to implement or rely on PRA-compliant guidelines (as he already does), but instead requires the
preservation of all vice presidential records. Although the Vice President has been applying section 2207
to all vice presidential records, the relief embodied in the preliminary injunction goes beyond even the
“guidelines” claims that plaintiffs purport to raise. This expanded request for relief simply underscores
plaintiffs’ desire for relief that goes beyond even their reading of Armstrong II.
18
In any event, the PRA does not impose the type of ministerial duty appropriate for
mandamus relief, as defendants established in their opening brief. Defs.’ Mot. at 14-15.
Plaintiffs argue that their challenge “rests on the completely non-discretionary language of
section 2201” defining presidential records. Pls.’ Opp’n at 26; see also id. at 24 (the “PRA
unambiguously defines vice presidential papers”). But if that definitional provision were
sufficient to establish a right to mandamus review, a mandamus action to order the President or
Vice President to preserve (and not dispose of) any specific record meeting the “unambiguous”
definition of presidential or vice presidential record would be reviewable as well. But that is not,
of course, contemplated by the PRA. As the D.C. Circuit has instructed, the
PRA accords the [Vice] President virtually complete control over his records
during his term of office. Although the [Vice] President must notify the Archivist
before disposing of records and the Archivist may inform Congress of the [Vice]
President’s desire to dispose of the records, neither the Archivist nor the Congress
has the authority to veto the [Vice] President’s disposal decision. . . . Instead, the
provision authorizing the Archivist to notify Congress “is solely for notification
[so that] Congress would have its traditional means of voicing objection to
particulars in the proposal directly to the [Vice] President, or ultimately by
passing legislation to block the destruction of certain records.”
Armstrong I, 924 F.2d at 290 (quoting legislative history of the PRA). It therefore cannot be that
the definitional provision alone creates any duty subject to mandamus.10
The definitional provision is, instead, implemented through the discretionary provisions
of section 2203 of the PRA. Thus, it is “[t]hrough the implementation of records management
controls and other necessary actions”—including any guidelines classifying vice presidential
records—that the Vice President is tasked with taking “all such necessary steps as may be
10
For this reason, the district court’s conclusion in Armstrong v. Bush, 721 F. Supp. at 352-53, that the
PRA provides no room for discretion is distinguishable. There, the court claimed that the “President has
no discretion to dispose of the document otherwise than in accordance with the procedures contained in
the statute.” Id. While it is expected that presidents and vice presidents will comply with the procedures
for disposal contained in the PRA, as this Vice President has done, the D.C. Circuit’s subsequent
19
necessary to assure that the activities, deliberations, decisions, and policies that reflect the
performance of his constitutional, statutory, or other official or ceremonial duties are adequately
documents and that such records are maintained as Presidential records pursuant to the
requirements of” the PRA. 44 U.S.C. § 2203. To the extent any guidelines are issued by any
President or Vice President to conform with the requirements of the PRA, the guidelines are part
of “all such steps as may be necessary” to comply with the PRA. Id. Those steps “as may be
necessary” to comply with the PRA are not prescribed as “clear and indisputable” duties
justifying mandamus review. PDK Labs, Inc. v. Reno, 134 F. Supp. 2d 24, 34 (D.D.C. 2001).
Indeed, the PRA contains no requirement that the President or Vice President issue any
“guidelines” defining presidential records at all. And for mandamus relief, “the law must not
only authorize the demanded action, but require it; the duty must be clear and indisputable.” Id.;
see also Nat’l Treasury Employees Union v. Nixon, 492 U.S. 587, 608 (D.C. Cir. 1974) (“The
law required the performance of a single specific act; and that performance, it was held, might be
required by mandamus.”).
Any order requiring the Vice President or the OVP to rely on guidelines containing any
specific definitions, too, would tread on “Congress’ carefully crafted balance of [vice]
presidential control of records creation, management and disposal during the [Vice] President’s
term of office and public ownership and access to the records after the expiration of the [Vice]
President’s term.” Armstrong I, 924 F. 2d at 291. For the reasons that judicial review is
foreclosed under the PRA, see Defs.’ Opp’n at 18-23 and discussion supra at 4-13, mandamus
jurisdiction is lacking and the Court should decline to exercise any discretion to entertain the
claim. In re Cheney, 406 F. 3d 723, 729 (D.C. Cir. 2005) (“[W]hether mandamus relief should
conclusion on its review of the district court’s decision confirms that the duties prescribed in the PRA are
not the kind of “non-discretionary” duties necessary to support APA or mandamus review.
20
issue is discretionary.”); Nat’l Treasury Employees Union, 492 U.S. at 616 (rejecting request for
mandamus relief “in order to show the utmost respect to the office of the Presidency and to
avoid, if at all possible, direct involvement by the Courts in the President’s constitutional duty
faithfully to execute the laws and any clash between judicial and executive branches of the
Government”).
II. Claims Three and Four Must Be Dismissed For Lack Of Subject Matter Jurisdiction
For similar reasons, the Court lacks subject matter jurisdiction over plaintiffs’ declaratory
judgment, APA and mandamus claims against NARA and the Archivist. The PRA prescribes no
oversight role for the Archivist or NARA over an incumbent vice president’s compliance with
the PRA, except the limited disposal responsibilities set forth in 44 U.S.C. § 2203 and the
authority to issue regulations relating to access to presidential records in the Archivist’s custody.
44 U.S.C. § 2206; see also Armstrong I, 924 F.2d at 290 (PRA ensures the Vice President’s
“control over [vice] presidential records during the [Vice] President’s term in office); (PRA
leaves “implementation of [PRA] in the [Vice] President’s hands); (PRA does not provide for the
Archivist to promulgate guidelines and regulations to assist the Vice President in the
development of a records management system); (Archivist lacks authority to inspect the Vice
President’s records or survey the Vice President’s management practices); (Archivist has no
authority to veto any disposal decision); (“PRA accords the [Vice] President virtually complete
control over his records during his term of office.”); (PRA does not permit “outsiders the right to
interfere with White House recordkeeping practices). To the extent plaintiffs seek review of any
oversight role required of the Archivist or NARA to ensure through NARA regulations that the
vice president classifies his records in accordance with the PRA, the PRA provides no such right,
eliminating any claim to declaratory or mandamus relief. See discussion supra at 4-21; Defs.’
21
Mot. at 17-18. And the PRA precludes judicial review of such claims under the APA. See
Defs.’ Mot. at 18-25.
The existence of NARA regulations relating to vice presidential records does not support
any oversight obligations on the part of NARA or the Archivist as plaintiffs contend. Pls.’
Opp’n at 27-28. Rather, those guidelines implement section 2206 of the PRA and govern the
“designation of person or persons to act for former Presidents,” 36 C.F.R. §§ 1270.20–1270.22;
“Disposal of Presidential Records,” id. § 1270.30; “Access to Presidential Records” after the
Archivist obtains legal custody of them at the conclusion of an administration, id. § 1270.40–
1270.46; and processing of “Presidential Records Compiled for Law Enforcement Purposes,” id.
§1270.50.11
Nor have plaintiffs raised post-administration claims like those held reviewable pursuant
to APA causes of action in American Historical Association. 876 F. Supp. at 1315. Plaintiffs
are not seeking “judicial review of the Archivist’s compliance with her obligations under the
PRA when she takes custody of Presidential records at the conclusion of the [Vice] President’s
term.” Id. at 1315 (emphases in original). Rather, plaintiffs seek review of NARA’s purported
oversight responsibilities over the incumbent Vice President’s recordkeeping guidelines and
practices. Such claims are not reviewable as explained above.
11
Accordingly, plaintiffs’ attacks on Ms. Smith’s knowledge about NARA guidance on PRA compliance
are misplaced. Pls.’ Opp’n at 28 n.33. Ms. Smith appropriately testified that NARA has not
“memorialized in any written documents a definition of what Vice Presidents are required to preserve
under the Presidential Records Act” because NARA and the Archives has no authority to require Vice
Presidents to preserve anything under the PRA. Ex. 3, Smith Rough Dep. Tr. at 29:9-14 (“I think the
Presidential Records Act does that.”). She testified instead that section 2201 defined the scope of records
subject to the PRA. Id. at 190:1-7 (Q: For purposes of implementing the Presidential Records Act, does
NARA have a working definition of which functions the Vice President performs must be preserved –
records from which functions that the Vice President performs must be preserved under the Presidential
Records Act? A: I think it’s clear in 2201.”). Moreover, the definition of “Vice-Presidential records” in
the NARA regulations simply mirrors the definition of presidential records in the PRA. 36 C.F.R.
§ 1270.14(d).
22
Fundamentally, too, plaintiffs wholly fail to establish that any NARA policy or guidance
regarding legislative records have caused them (or will cause them) any injury. Contrary to
plaintiffs’ contentions, see Pls.’ Opp’n at 44, defendants have offered undisputed facts that this
Vice President applies the PRA to legislative records and does not rely on any contrary guideline
to exclude legislative records from the PRA. See SMF ¶¶ 3-5; Ex. 2, O’Donnell Dep. Tr. at
61:17-22 (explaining that legislative records are treated “the same as the executive records are
kept. Everything is considered a document that has to be kept or filed.”); see also Ex. 3, Smith
Rough Dep. Tr. at 199:6-9 (“They confirmed to NARA that in response to a question we asked
that they were treating records that Cheney created in the Senate office as vice presidential
record.”); 202:10-15 (“NARA specifically . . . Gary Stern [NARA’s general counsel], asked how
were they [OVP] treating legislative or records created in the Senate office and they responded
over I think it was several conversations, not all of which I were involved in, that they were
treating them as vice presidential record.”); 203:7-12 (same); Ex. 1, O’Donnell Decl. ¶ 7 (OVP
does not rely on Executive Order 13233 of November 1, 2001 or any guidelines issued by
defendants to exclude any vice presidential records of the vice presidency of Richard B. Cheney
from the requirements of section 2207 of title 44). Accordingly, plaintiffs are “assur[ed] these
records will be transferred to NARA’s custody and control at the end of” the Vice President’s
term of office and may not seek judicial relief to compel it. Pls.’ Opp’n at 43.
None of plaintiffs’ declarations hint at any injury from the absence of legislative records
either, nor could they in light of the sworn testimony provided by defendants. See, e.g., Decl. of
Stanley I. Kutler [11-2] ¶ 7 (alleging without evidence that the Vice President and OVP “limit
the reach of the PRA to only ‘executive records’ of the vice president,” and stating unsupported
belief that “the vice president may well plan to abscond with his records when he leaves office”);
23
Decl. of Anna Kasten Nelson [11-2] ¶¶ 4-5 (describing need to access records about the war in
Iraq and not mentioning legislative records); 2d Decl. of Anna Kasten Nelson [41-4] ¶¶ 4-11
(describing general need for research into “foreign policymaking” presidential records and
“formation of policy within an administration that has fought two wars and mismanaged one of
the greatest natural disasters in the last half century,” but omitting any need for legislative
records); see also Pls.’ Resp. to Defs.’ LCvR 56.1 Statement of Material Facts & Pls.’ Statement
of Material Facts Not in Dispute [41-2] ¶¶ 1-17 (failing to establish harm with regard to
legislative records) (“Pls.’ SMF”); Defs.’ SMF [39-6] ¶ 3 (“There are no vice presidential
records that the Office of the Vice President has excluded from the scope of the PRA through its
guidance or polices regarding vice presidential records.”) (not disputed by facts in plaintiffs’
response); Defs,’ SMF [39-6] ¶ 4 (“All official records received or created by the OVP are
treated as vice presidential records under the PRA.”) (not disputed by facts in plaintiffs’
response); Defs.’ SMF [39-6] ¶ 5 (“[T]here is no validity to the claim that ‘legislative records’
are treated as personal by this Vice President.”) (not disputed by facts in plaintiffs’ response). In
light of Supreme Court instructions that “confirm that a plaintiff must demonstrate standing for
each claim he seeks to press,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006),
plaintiffs cannot rely on even generalized allegations of harm with regard to vice presidential
records created or received in carrying out executive-related functions to seek relief with regard
to legislative-related functions. Claims Three and Four should accordingly be dismissed.
III. Plaintiffs’ Lack of Standing Requires that their Claims be Dismissed
A. Plaintiffs Lack Imminent Injury
Four of the seven plaintiffs cannot establish the existence of imminent injury by
competent evidence that they will, in fact, seek this Vice President’s records through FOIA
24
requests in the future. CREW v. Department of Homeland Security, Civ. No. 06-0883, Slip. Op.
at 7-10 (D.D.C. Dec. 17, 2007) (RCL) (“While there [was], admittedly, a reasonable probability
that CREW will seek these records in the future, this presumption is not enough to establish an
imminent, non-speculative injury-in-fact.”). Those plaintiffs that have failed to provide any
evidence (as opposed to mere allegation in the Amended Complaint) of imminent harm must be
dismissed for failure to establish imminent harm “affirmatively from the record.”
DaimlerChrysler, 547 U.S. at 342 n.3; see also Pls.’ SMF ¶¶ 1 (relying only on allegations from
Amended Complaint to assert standing on behalf of plaintiff Citizens for Responsibility and
Ethics in Washington); 3 (same for plaintiff Martin J. Sherwin); 4 (same for plaintiff American
Historical Association); 6 (same for Society of American Archivists). They must be dismissed
from this action.
Although plaintiffs Stanley Kutler and the Organization of American Historians and
Society for Historians of American Foreign Relations, through Anna Kasten Nelson, obliquely
claim in sworn declarations that they will seek records from this vice presidency to conduct
research in the future, none unambiguously so claims. See Kutler Decl. ¶¶ 6 (“In the future, I
plan to research Vice President Cheney’s advocacy of something he calls the ‘unitary theory’ of
our government[.] . . . The vice president’s emails with his staff and his other papers are crucial
to understanding the unitary theory and my writing on this subject); ¶ 7 (“As result, his vice
presidential papers will never be deposited with NARA, as the law requires, and I will be
deprived of material critical to my research.”); Kasten Decl. ¶ 5 (“If that happens not only will I
be harmed in my ability to conduct presidential research . . ..”); 2d Kasten Decl. ¶ 7 (“Most of
the historians in SHAFR who write about foreign policymaking use presidential records
extensively and something exclusively. American historians in OAH also find presidential
25
records essential for understanding American political history.”). And, as explained above, the
three plaintiffs submitting declarations make no mention of any future intent to seek (or even a
general interest in) legislative records required to support Claims Three and Four.
B. Plaintiffs Lack Any Injury-in-Fact
Plaintiffs virtually ignore their obligation to show a “substantial probability” that they
have been injured in fact, Sierra Club v. Environ. Protection Ag., 292 F.3d 895, 899 (D.C. Cir.
2002), and wholly fail to rebut with any contrary affirmative evidence the legal presumption that
jurisdiction is lacking. DaimlerChrysler, 547 U.S. at 342 n.3. Defendants do not “disguis[e]
their merits arguments as a challenge to plaintiffs’ standing . . . to avoid the evidentiary burden
that is properly [defendants] on a motion for summary judgment.” Pls.’ Opp’n at 29. The
burden to prove standing has always been plaintiffs. See Defs.’ Mot. at 35-36. While plaintiffs
fail to bear their burden of conclusively establishing injury in fact, defendants nonetheless
provided affirmative evidence in their opening brief establishing that plaintiffs suffer no such
injury. Id. at 29-36. That is because there are no vice presidential records that the Office of the
Vice President has excluded from the scope of the PRA through its guidance or policies
regarding vice presidential records. See Defs.’ Mot. at 28-36; see also Ex. 5, Second Rough
Dep. Tr. of Nancy Kegan Smith at 16:15-18 (“Q: It doesn’t deviate in any way from the
statutory definition? By statutory, I mean the Presidential Records Act definition of personal
records. A: No, it does not.”); 19:6-16 (“Q: Anywhere within the memo does it contain a
definition of vice presidential records? A: Not other than the statutory cite. Q: There’s not
other definition that you can recall? A: As I mentioned earlier, I said that it said vice
presidential records were important to preserve and later on, it says that records that are received
by the Office of the Vice President in conducting their constitutional, statutory, official or other
26
ceremonial duties are vice presidential records.”); 21:3-14 (similar); 25:18-26:8 (“What I said is
it’s very clear on the definition and totally in keeping with the statutory definition in 2201 and in
2203, it gives the definition of record and then who manages the record . . ..”).
Plaintiffs rest their entire action on an adherence to the claim that the “specially assigned”
language used to describe the Vice President’s non-legislative functions is “facially under-
inclusive . . . that excludes those responsibilities assigned to the vice president by Congress as
well as functions that go to the core of Vice President Cheney’s power over policy making: the
advice he gives the president on his own initiative and the influence he has over the president’s
decisions.” Pls.’ Opp’n at 41-42. But that is simply not the case and entirely disregards the
substantial evidence defendants offered in their opening brief to the contrary. 12 See Defs.’ Mot.
at 32-35 (“As the declarations reflect and as confirmed in the deposition, the Vice President has
no official functions other than those ‘specially assigned to the Vice President by the President in
the discharge of executive duties and responsibilities’ and those as President of the Senate, and
no documentary materials that meet the definition of vice presidential records are being excluded
from the reach of the PRA. 2d Supp. Decl. ¶ 7; Supp. Decl. ¶ 6; Ex. 2, O’Donnell Dep. Tr. at
84:16-19.”); id. at 34 (“Moreover, notwithstanding plaintiffs’ attempt to limit the reach of the
phrase ‘specially assigned by the Vice President by the President in the discharge of executive
duties and responsibilities,’ the record makes clear that the phrase was intended to cover all of
the Vice President’s duties but for his duties as the President of the Senate.”). Plaintiffs’
assertion ignores the OVP’s understanding of that term of art, an understanding that confirms
12
Plaintiffs’ failure to address the evidence about the meaning of “specially assigned” alone provides
grounds to grant defendants’ motion to dismiss. See, e.g., Hopkins v. Women’s Div., General Bd. of
Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (citing FDIC v. Bender, 127 F.3d 58, 67-68
(D.C. Cir. 1997) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion
to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.).
27
that all official vice presidential records are treated in accordance with section 2207 of the PRA.
It is that understanding, and not plaintiffs, which controls the actual day-to-day preservation of
records by the OVP. And that day-to-day preservation is governed by guidelines and policies
that fully conform with the requirements of the PRA. The following are illustrative examples of
plaintiffs’ mischaracterization of the record in purportedly “supporting” their only claim to
injury: that the “specially assigned” language is under-inclusive.
Assertions in Plaintiffs’ Contrary Evidence in the Record

Opposition
“Thus, the Court’s preliminary See, e.g., Ex. 2, O’Donnell Dep. Tr. at 84:16-19 (Q: “Okay. And are there
assessment remains true today: any other responsibilities that he has? A: Everything would fall under those
defendants have adopted an unduly two categories, everything else he does; 37:15-38:1 (“Q: And what is your
narrow interpretation of vice understanding of the documents that the Vice President is required to
presidential records that cannot be transfer to NARA at the end of his administration? A: All of his executive
reconciled with the PRA.” Pls.’ and legislative files. Q: Okay. Do you have any more specific
Opp’n at 36. understanding than that? A: Any documents that he has either created or
received in his official functions.”); 83:18-84:1 (Q: Is it your understanding
that everything that the Vice President does in his executive capacity is
“Yet the precise question before the specially assigned by the President? A: In general terms and in specific
Court is the legal significance of this terms, yes. It’s all – they are all assigned by the President); 172:10-22 (“Q:
narrow definition of the vice “The Vice President relies in substantial part on OVP personnel for support
president’s duties and in the performance of his official functions. What, as used herein, what does
responsibilities and whether it the term official functions include? A: All of his executive and legislative
encompasses all of his duties and functions. Q: And does that term differ in any way from those functions
responsibilities generating records that are specially assigned by the President? A: It encompasses those
covered by the PRA.” Pls.’ Opp’n at functions, specially assigned.”); 66:12-22 (“He is there to take on
36-37. responsibilities that the President assigns to him. He has no other
responsibilities other than to assist and work for the President. . . . When we
first came into office, that’s what we were told. We were there as Vice
“Accordingly, the Court is left with Presidential staff to assist the Vice President in carrying out his function in
a facially under-inclusive definition working for the President.”); 73:5-10 (“And how does this definition, by this
of vice presidential records that definition I mean Vice Presidential support of Presidential functions differ
excludes those responsibilities from the specially assigned definition that you offered in the current
assigned to the vice president by litigation? A: For me, it doesn’t differ.”); see also id. at 78:14-79:2
Congress as well as functions that (responding specifically to questions about the Vice President’s duties on the
go to the core of Vice President National Security Council, “They are part of his executive duties”); 78:1-13
Cheney’s power over policy (explaining that any documentary material created in connection with the
making: the advice he gives the Vice President’s duties with regard to the Smithsonian Institution would be
president on his own initiative and considered vice presidential records). As Ms. O’Donnell explained,
the influence he has over the however, whether a specific function is considered “executive” or
president’s decisions. Neither can “legislative” is immaterial in implementing the PRA: “all documents, all
legitimately be understood as documents in the Vice President’s office, created or received by the Vice
‘specially assigned to the vice President’s staff are being kept under the Presidential Records Act.” Id. at
president from the president, yet 140:8-12; 74:8-13 (explaining that one does not need to determine whether a
each is integral to explaining the particular activity constitutes vice presidential support of presidential
Vice President Cheney’s role in the functions); 70:13-71:3 (explaining that recordkeeping guidance under the
Bush administration.” Pls.’ Opp’n PRA does not use “specially assigned” language).
at 41-42.
28

Opposition
Ex. 1, O’Donnell Supp. Decl. ¶¶ 5, 6 (“When the Office of the Vice
President refers . . . to ‘the functions of the Vice President specially assigned
to the Vice President by the President in the discharge of executive duties
and responsibilities, . . . the OVP is referring to the universe of governmental
activities of the Vice President other than his functions as President of the
Senate. There is no ‘gap’ – there are no governmental functions of the Vice
President that fall outside the combination of (a) ‘the functions of the Vice
President specially assigned to the Vice President by the President in the
discharge of executive duties and responsibilities,’ and (b) the functions of
the Vice President as President of the Senate.”); 2d Supp. Decl. ¶¶ 5 (“In
short, in doing his job as Vice President, a Vice President, including Vice
President Cheney, engaged in, and engages only in, activities that fall within
either of two categories: (a) functions specially assigned to the Vice
President by the President in the discharge of executive duties and
responsibilities, or (b) functions of the Vice President as President of the
Senate. The Office of the Vice President construes these categories of
functions broadly, so that all of the Vice President’s functions as Vice
President fall within either of those tow categories.”), ¶ 7 (“The Vice
President has no functions as Vice President other than the functions of the
Vice President specially assigned to the Vice President by the President in
the discharge of executive duties and responsibilities and functions of the
Vice President as President of the Senate.”).
“While defendants cite to extensive See, e.g., Ex. 2, O’Donnell Dep. Tr. at 66:4-69:8 (“Q: Have you in any other
deposition testimony of Ms. situation used the specially assigned language to described the functions of
O’Donnell, they obscure the central the Vice President? A: I have used it myself. Q: And what is the context of
point that nothing in her testimony your use? A: In chatter of what does the Vice President really do. . . . He is
sheds light on the derivation, there to take on responsibilities that the President assigns to him. He has no
meaning or intent of defendants’ other responsibilities than to assist and work for the President. Q: And
narrow, under-inclusive definition.” where did your understanding of that function come from? A: When we first
Pls.’ Opp’n at 36. came into office, that’s what we were told; we were there as Vice
Presidential staff to assist the Vice President in carrying out his functions in
“When pressed on how ‘specially working for the President . . . He always describes the Vice President’s
assigned’ reflects the various Office as the office that is there to assist the Vice President in carrying out
responsibilities that statutes assign his duties that he has been assigned to do by the President.”); id. at 83:18-
to the vice president, Ms. O’Donnell 84:1 (Q: Is it your understanding that everything that the Vice President
replied only ‘I don’t get into the does in his executive capacity is specially assigned by the President? A: In
legalese of all of the Vice general terms and in specific terms, yes. It’s all – they are all assigned by
President’s duties.’” Pls.’ Opp’n at the President); id. at 86:13-87:2 (“When I say specially assigned, I don’t
36. mean, you know, everything [the Vice President] does, [that] it’s a check list
that they [the Vice President and President] go through every day. It’s kind
“Ms. O’Donnell’s deposition of a general term. . . [I]t’s just a term of art that the Vice President’s office
testimony reveals she was not a uses. We are here to support the President.”); id. at 92:5-93:10 (“Q: But if –
competent witness to testify if this definition contained in the Plum Book and advanced by David
regarding the meaning of the phrase Addington is correct, if the Vice President is not part of the Executive
‘specially assigned’ or any of the Branch, how do you think he can perform executive functions, as you’ve
other matters to which she attested described them in your declaration? A: I wouldn’t want to get into the
in the three declarations she legalese of it. I just know he does perform executive duties assigned to him
submitted in this lawsuit.” Pls.’ by the President. Q: And you know that because? What’s the basis for your
Opp’n at 37. knowledge? A: He assigns the staff different assignments, the Vice
President does, to carry out functions for him as his, as part of his executive
“As her testimony reveals, Ms. duties . . . That’s the way it’s been explained to me. General knowledge.”);
O’Donnell was presented with id. at 94:3-11 (“Q: Going back to your declaration that you submitted in this
29

Opposition
declarations drafted by counsel that case, the one we’ve been talking about, why did you choose to include the
she readily signed, with no word executive in paragraph five in your description of functions specially
particular understanding of their assigned to the Vice President by the Vice President in the discharge of
legal implications or the reasons executive duties and responsibilities? A: I think just to distinguish that he
why specific language, such as the also has legislative responsibilities.”); id. at 160:17-161:1 (“People are
‘specially assigned’ description was assigned duties from the Vice President or the Vice President’s Chief of
used.” Pls.’ Opp’n at 40-41. Staff. I don’t know that they are assigned things with the understanding that
the President has specifically asked. It’s just kind of the understanding.
“She could not explain why she That’s really what the Vice President it there for, to support the President in
used both the term ‘specially’ and his duties.”); id. at 172:10-22 (“Q: And then in that same paragraph, the first
‘executive’ to describe the vice sentence, back on page 2, it states: the Vice President relies in substantial
president’s functions[.]”Pls.’ Opp’n part on OVP personnel for support in the performance of his official
at 41. functions. What – as used herein, what does that term official functions
include? A: All of his executive and legislative functions. Q: And does
“In short, Ms. O’Donnell could shed that term differ in any way from those functions that are specially assigned
no light on the meaning of the by the President? A: It encompasses those functions, specially assigned.”).
‘specially assigned’ language
defendants proffered to define the Ex. 1, O’Donnell Supp. Decl. ¶¶ 5, 6; 2d Supp. Decl. ¶¶ 5-7.
scope of vice presidential
responsibilities generating vice
presidential records within the
meaning of the PRA.” Pls.’ Opp’n at
41.
“She was unaware of any other Although Ms. O’Donnell explained that the terms “specially assigned” was
guidance or documentation not reflected in any record keeping guidance, Ex. 2, O’Donnell Dep. Tr. at
containing this language.” Pls.’ 70:13-71:15, she did explain that the language was routinely used to describe
Opp’n at 41. the Vice President’s non-legislative functions. Id. at 66:4-69:8.
Contrary to plaintiffs’ unsupported claims, therefore, the record decisively establishes
that Ms. O’Donnell did “shed . . . light on the meaning of the ‘specially assigned’ language
defendants proffered to define the scope of vice presidential responsibilities generating vice
presidential records within the meaning of the PRA,” Pls.’ Opp’n at 41, which confirmed her
declaration testimony that “the Vice President has no functions as Vice President other than the
functions of the Vice President specially assigned to the Vice President by the President in the
discharge of executive duties and responsibilities and functions of the Vice President as
President of the Senate.” 2d Supp. Decl. ¶ 7. Accordingly, the OVP has been complying fully
with the terms of the PRA by applying section 2207 to all “documentary materials, or any
reasonably segregable portion thereof, created or received by the [Vice] President, his immediate
30
staff, or a unit or individual of the [Office of the Vice President] whose function is to advise and
assist the [Vice] President, in the course of conducting activities which relate to or have an effect
upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the
[Vice] President.” 44 U.S.C. § 2201(2); see Defs.’ Mot. at 29-36; Defs.’ SMF ¶¶ 3-5. Plaintiffs
can prove no injury and, on that basis alone, their claims must be dismissed.
Rather than provide affirmative evidence to establish any injury at all, plaintiffs
unsuccessfully attempt to discredit the testimony of the Assistant to the Vice President and
Deputy Chief of Staff, Claire M. O’Donnell, and the Director of the Presidential Materials Staff
in the Office of Presidential Libraries at NARA, Nancy Kegan Smith. Even on summary
judgment, however, the Supreme Court instructs that “mere allegation or denials” are inadequate;
“discredited testimony is not normally considered a sufficient basis for drawing a contrary
conclusion”; and instead a plaintiff “must present affirmative evidence in order to defeat a
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, 477 U.S. 242,
256-57 (1986); see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d
145, 150 (1996).
In addition to the fact that plaintiffs’ attempts to discredit testimony do not satisfy their
burden of providing affirmative evidence necessary to support their claims, even those attempts
fall flat. Those attacks fall generally into three categories: Ms. O’Donnell’s competence to
“testify regarding the meaning of the phrase ‘specially assigned,’” Pls.’ Opp’n at 38; her
knowledge about guidance and instructions regarding the PRA, id. at 37-39; and her knowledge
about specific records “that either the OVP or the vice president himself creates or maintains.”
Id. at 39-41. Not one undercuts defendants’ evidence establishing the absence of injury in fact.
31
First, as demonstrated above, Ms. O’Donnell did in fact explain the meaning of the
“specially assigned” language used in her declarations and confirmed that the Vice President is
complying fully with the terms of the PRA. See discussion supra at 27-30.
Second, the bulk of plaintiffs’ attacks on Ms. O’Donnell’s competence to testify as a
witness on the OVP’s recordkeeping guidelines about the PRA have been rejected. See Order
[38] at 7 (Nov. 20, 2008) (“Contrary to Plaintiffs’ assertions in the parties’ Joint Status Report,
the transcript reveals that Ms. O’Donnell has personal knowledge of Defendants’ PRA
guidelines and policies.”). Indeed, each of the attacks plaintiffs raise now was raised in their
stricken motion for additional discovery through their joint status report and rejected by court
order. Compare Pls.’ Opp’n at 37-41 with Joint Status Report [37] at 1 (“For the reasons
outlined in plaintiffs’ motion for leave to depose David Addington and re-depose Nancy Smith
. . . plaintiffs seek leave to depose David Addington in light of the complete inability of Claire
O’Donnell to address and resolve the questions raised by the Court that form the rationale for the
authorized discovery.”) and Stricken Mot. for Leave to Depose David Addington [35] at 3-9
(alleging same deficiencies in Ms. O’Donnell’s competence). As defendants proved and the
Court confirmed by reviewing Ms. O’Donnell’s deposition transcript, “Ms. O’Donnell has
personal knowledge of Defendants’ PRA guidelines and policies.”13 Order [38] at 7 (Nov. 20,
2008).
13
See Ex. 2, O’Donnell Dep. Tr. at 19:18-20 (“Q: Do you have responsibility for records management
within the Office of the Vice President? A: Yes.”); 21:13-16 (“Q: Have you received any training
specifically on records management since coming to the OVP? A: Yes. Q: And describe for me what
that training has been. A: It was a memo that we received when when we came on board and we have
been reminded on regular basis verbally and in ethics briefings.”); 25:19-27:14 (describing guidance at
staff meetings and ethics briefings about the PRA); 37:2-19 (explaining familiarity with the Presidential
Records Act because “it was part of the orientation when we came on and it’s just been a practice that I
have been told to make sure the Vice President’s Office practices”); 54:1-3 (“I have general knowledge of
the practices that we have all been told to adhere to.”); 54:15-16 (“I just go ahead and make sure
everybody understands the rules.”); 87:21-88:6 (explaining understanding that Vice President would
32
Finally, inquiry into Ms. O’Donnell’s specific, personal knowledge about the location
and treatment of specific alleged records by specific employees is proscribed by even plaintiffs’
reading of Armstrong II and goes beyond the “policies and guidelines pertaining to classification
decisions” plaintiffs claim to pursue in this action. Id. at 9-10. As Ms. O’Donnell testified, she
has knowledge about the guidance provided within OVP to “the staff that we trust” and that staff
are “expected to adhere to.” Id. at 139:16-140:2, 54:1-3 (“I have general knowledge of the
practices that we have all been told to adhere to.”); 79:22-80:5 (stating that Vice President
“supports the guidance that I have been asked to give out and the processes, processes that we
follow”). And that guidance conforms in full with the bounds of the PRA.
Plaintiffs’ continued insistence on, for example, “confirm[ation] that all documents
reflecting the vice president’s ‘specially assigned’ functions and duties are being treated as
covered by the PRA,” Pls.’ Opp’n at 41, therefore belies their claim that they do not challenge
“the vice president’s day-to-day record management practices and decisions,” but rather than the
“policies and guidelines of the vice president[.]” Pls.’ Opp’n at 2. If plaintiffs were truly
pursuing the latter, they must be satisfied by testimony “on the orientation and general guidance
[Ms. O’Donnell] received as an OVP employee, that other OVP employees and the vice
president himself were treating records as within the scope of the PRA.” Pls.’ Opp’n at 41. The
transfer “all of the papers, records, notes, recordings, memos that the Vice President has created since
January 20th, 2001 . . . as vice presidential material turned over to NARA under the Presidential Records
Act”); 95:19-96:4 (explaining understanding of the OVP’s guidance and practices); 96:11-97:6
(explaining that her responsibilities include making “people . . . aware of the guidance and the practices
they should be adher[ed] to”); 99:19-100:22 (explaining understanding that the OVP complies with PRA
through “interpretation that I have always taken from the guidance and that I know the meaning, the
guidance that we have been given because it’s given on a regular basis”); 102:7-104:2 (explaining that
“personal” records are very limited to records that are “really personal in your personal life outside of
anything official” like a “bank statement or a thank you note”); 130:1-5 (“The general guidance of any
document that is created or received in our capacities to support the Vice President and in his capacity and
his executive responsibilities, would be covered under the PRA.”); 139:16-140:2 (“Q: And do you know
whether in fact those records are being preserved under the Presidential Records Act? A: If they have
33
asserted deficiencies in Ms. O’Donnell’s testimony could not be cured unless all 84 staff
members of the OVP, including the Vice President himself, testified about PRA compliance with
respect to each particular, specific record. That is not what even plaintiffs represented would be
the purpose of this suit; it is improper; and does not at all undercut Ms. O’Donnell’s testimony or
establish plaintiffs’ Article III injury in fact. See also Armstrong I, 924 F.2d at 293-94 (“[E]ven
if a court may review the adequacy of an agency’s guidelines [under the FRA], agency personnel
will implement the guidelines on a daily basis. Thus agency personnel, not the court, will
actually decide whether specific documents . . . constitute “records” under the guidelines. [M]ost
importantly, the only issue the court would be asked to consider, i.e., the adequacy of appellants’
recordkeeping guidelines and directives, is clearly appropriate for judicial review.”).
Because plaintiffs offer no affirmative evidence to establish injury in fact, see also supra
at 23-24 (discussing absence of injury with regard to legislative records of this Vice President),
and defendants have conclusively demonstrated that plaintiffs can prove none, each of plaintiffs’
claims against each defendant must be dismissed.
C. Plaintiffs’ Injuries From The Vice President’s Alleged Noncompliance with the PRA
are not Fairly Traceable to Any Alleged Actions by NARA, the Archivist or “EOP”
or Redressable By Seeking Relief Against Them
Plaintiffs assert supposed harms from the vice president’s alleged creation of “a loophole
in the PRA large enough to drive truckloads of documents through[.]” Pls.’ Opp’n at 4. But
even if plaintiffs could establish such injury, which they cannot as demonstrated in defendants’
opening brief and above, plaintiffs cannot trace the injury to the EOP, NARA or the Archivist,
and cannot seek redress for such injury from them.14 Defs.’ Mot. at 36-37. Not one has
been created by the Vice President’s staff, I believe they are being preserved. Q: What is the basis for
your belief? A: The guidance that the staff that we trust has been given.”).
14
And, as also established above, plaintiffs lack any injury from the alleged policies and guidelines
relating to the legislative records.
34
recordkeeping authority over an incumbent vice president’s records, and any relief ordered from
the EOP, NARA or the Archivist will not redress plaintiffs’ purported harms from the vice
president’s actions.
As the Supreme Court explained in Lujan v. Defenders of Wildlife:
When . . . a plaintiff’s asserted injury arises from the government’s allegedly

unlawful regulation (or lack of regulation) of someone else, much more is needed.
In that circumstance, causation and redressability ordinarily hinge on the response
of the regulated (or regulable) third party to the government action or inaction –
and perhaps on the response of others as well. The existence of one or more of
the essential elements of standing depends on the unfettered choices made by
independent actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume to control or to predict. . . .
504 U.S. at 562 (emphasis by court) (quotation and citation omitted). It is not enough, as
plaintiffs contend, that any pronouncement about the legality of any other defendants’ actions
may address the same issues concerning the Vice President’s recordkeeping practices. Pls.’
Opp’n at 34. “Redressability requires that the court be able to afford relief through the exercise
of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining
the exercise of its power.” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005)
(emphasis added). Thus, even if plaintiffs “prevailed on the merits in [their] challenge to” any of
the other defendants’ alleged guidelines or policies, the OVP’s (wholly PRA-compliant)
guidelines “would still be in place.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d
930, 940 (D.C. Cir. 2004). As a result, plaintiffs cannot establish redressability with respect to
the EOP, NARA and the Archivist, and their challenges against them must be dismissed. See
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,42-43 (1976) (“It is purely speculative
whether the denials of service specified in the complaint fairly can be traced to petitioners’
encouragement or instead result from decisions made by hospitals without regard to tax
implications.”); Renal Phys. Ass’n v. U.S. Dep’t of Health and Human Servs., 489 F.2d 1267,
35
1276 (D.C. Cir. 2007) (finding absence of redressability where “at least plausible that” a third
party would maintain its policies even if a regulation were held unlawful); Rubin v. City of Santa
Monica, 308 F.3d 1008, 1019-20 (9th Cir. 2002) (“Just as the City of Santa Monica voluntarily
chose to adopt the State’s regulations for its elections, so could it choose to follow the guidelines
even if the State no longer adhered to them.”).
IV. Summary Judgment Should Be Granted On Behalf of the Defendants On Any Claims
That Survive the Motion to Dismiss
The record establishes that the OVP has applied the PRA to all “documentary materials,
or any reasonably segregable portion thereof, created or received by the [Vice] President, his
immediate staff, or a unit or individual of the [Office of the Vice President] whose function is to
advise and assist the [Vice] President, in the course of conducting activities which relate to or
have an effect upon the carrying out of the constitutional, statutory or other official or ceremonial
duties of the [Vice] President.” 44 U.S.C. § 2201(2). Thus there is “no genuine issue as to any
material fact” that defendants’ guidelines comply with federal law and do not exclude from the
scope of the PRA records of the OVP created and received in the course of conducting activities
relating to or having an effect on the carrying out of the Vice President’s constitutional, statutory
or other official or ceremonial duties. Accordingly, summary judgment should be granted on
behalf of defendants to the extent that the Court finds that any claims survive defendants’ motion
to dismiss. See Defs.’ SMF ¶¶ 2-5.
For the reasons explained above, plaintiffs fail to present evidence upon which the Court
could rule in their favor in opposing defendants’ motion for summary judgment and likewise fail
to establish that no genuine issue as to any material fact exists to support plaintiffs’ claim to
relief in their cross-motion. Liberty Lobby, 477 U.S. at 257. “Rule 56(e) itself provides that a
party opposing summary judgment may not rest upon mere allegation or denials of his pleading,
36
but must set forth specific facts showing that there is a genuine issue[.]” Id. Plaintiffs may not
“defeat summary judgment . . . without offering ‘any significant probative evidence tending to
support’” their amended complaint, and, as demonstrated in defendants’ opening brief and
above, plaintiffs have provided no evidence, let alone significant probative evidence in their
effort. Id.
Significantly, too, plaintiffs fail to dispute the majority of plaintiffs’ statement of facts.
Jackson, 101 F.3d at 150-154; see also LCvR 7(h) (Sept. 2, 2008) (deleting LCvR 56.1). For
example, defendants established in paragraph 3 of their statement of material facts that “[t]here
are no vice presidential records that the Office of the Vice President has excluded from the scope
of the PRA through its guidance or policies regarding vice presidential records” and that “the
OVP has not relied on any guidelines issued by any other defendant to exclude any vice
presidential records of the vice presidency of Richard B. Cheney from the requirements of
section 2207 of title 44.” Defs.’ SMF ¶ 3. Rather than disputing these facts (which plaintiffs
cannot do), plaintiffs instead respond simply that the “paragraph consists of fragments and
characterizations of declarations and deposition testimony jumbled together and taken out of
context together with stated intentions, including stated future intentions, none of which are
material facts genuinely not in dispute.” Pls.’ Response SMF ¶ 3. Local Civil Rule 7(h) (Sept.
2, 2008) provide that the Court “may assume that facts identified by the moving party in its
statement of material facts are admitted, unless such a fact is controverted in the statement of
genuine issues filed in opposition to the motion” with “references to the parts of the record relied
on to support the statement.” See also Defs.’ SMF ¶ 4 (“All official records received or created
by the OVP are treated as vice presidential records under the PRA.”); Pls.’ Response SMF ¶ 4
(“This paragraph consists of fragments and characterizations of declarations and deposition
37
testimony jumbled together and taken out of context together with stated intentions, including
stated future intentions, none of which are material facts genuinely not in dispute. Moreover, the
deponent on which defendants rely, Claire M. O’Donnell, is not competent to testify to the
matters for which selected portions of her deposition testimony are offered.”).
Moreover, plaintiffs provide only one paragraph in their statement of material facts
relating to the OVP’s treatment of records. That paragraph states only that “[f]or purposes of the
vice president’s compliance with the PRA, the vice president, the Office of the Vice President
(“OVP”), and the Executive Office of the President (“EOP”) consider the phrase ‘constitutional,
statutory, or other official or ceremonial duties of the vice president’ to include only the
functions of the vice president as president of the Senate and the functions of the vice president
specially assigned to the vice president by the president in the discharge of executive duties and
responsibilities.” Pls.’ SMF ¶ 13. In light of the record evidence establishing that the Vice
President has no official functions other than those functions, no documentary materials that
meet the definition of vice presidential records are being excluded from the reach of the PRA.
See, e.g., Defs.’ Mot. at 34.
For the reasons set forth in defendants’ opening brief and above and the incontrovertible
record before the Court, defendants are entitled to summary judgment on any claims that survive
defendants’ motion to dismiss.
//
//
//
38
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss, or, in the alternative, for
summary judgment, should be granted and plaintiffs’ cross-motion for summary judgment
should be denied.
Respectfully submitted this 31st day of December, 2008.
GREGORY G. KATSAS
Assistant Attorney General
JOHN R. TYLER (D.C. Bar No. 297713)

Assistant Branch Director
/s/ Helen H. Hong

HELEN H. HONG (CA SBN 235635)
Trial Attorney
U.S. Department of Justice, Civil Division
P.O. Box 883, 20 Massachusetts Ave., NW
Washington, D.C. 20044
Telephone: (202) 514-5838
Fax: (202) 616-8460
helen.hong@usdoj.gov
Counsel for Defendants
39
Case 1:08-cv-01548-CKK Document 43-2 Filed 12/31/2008 Page 1 of 9
EXHIBIT 5
ROUGH DRAFT
Page 1
Q Ms. Smith, I don't know if you remember the
ground rules I gave you the last time, but one of them
is that you need to make your answers audible so that
they can be recorded and also, if you don't understand a
question, please let me know and I'll try to rephrase it
in a way that you do understand and if you don't say
anything, I'm going to assume that you've heard and
understood the question.
A Okay.
Q What have you reviewed since your last
deposition in this matter to prepare for the deposition?
A To prepare for this deposition?
Q Correct.
A Basically, the memo that I mentioned.
Q When you say the memo, can you just explain so
it's clear in the record what we're talking about?
A The memo that I mentioned that Fred Fielding
sent to staff on guidance on the Presidential Records
Act.
Q Did you also review a copy of your deposition
transcript from your prior deposition?
A No, unfortunately, I have not had time to do
6d8d7d0f-06b1-44fc-a15f-a9754049d8e9
ROUGH DRAFT
Page 2 Page 4
1 that. 1 Q Does it have a two line?
2 Q The only written document you've looked at to 2 A Two, yes.
3 prepare for today is what we'll call the Fielding memo? 3 Q It lists those components?
4 A I believe that is correct. 4 A Yes.
5 Q If I say the Fielding memo, you know that I'm 5 Q Does it have a subject line? Do you know what
6 referring to the memo that you mentioned in your last 6 I mean by a subject line?
7 deposition and that the court has authorized us to 7 A I know what you mean by subject line. I
8 inquire into? 8 believe it does have a subject line.
9 A I think that we should say the Fielding 2008 9 Q What is the subject?
10 memo just to be clear. 10 A Presidential Records Act Guidance.
11 Q That's fine. I'll try to remember to call it 11 Q It's issued directly from White House Counsel
12 the Fielding 2008 memo. 12 Fielding, is that correct?
13 Did you have your own copy of the Fielding 13 A Yes, that is correct.
14 2008 memo? 14 Q Is there any other name on it that it's issued
15 A Yes. 15 from or is he the only individual?
16 Q Is that the copy you used to look at? 16 A Fielding is the only individual.
17 A Yes. 17 Q Just to be clear; is it issued from White
18 Q What is the date of that memo? 18 House Counsel's office or from Fred Fielding, White
19 A October of 2008. 19 House Counsel?
20 Q Do you know which day in October it was 20 A Fred Fielding signs the memo.
21 issued? 21 Q So, we've accounted for the two line, the
22 A I believe it was October 10, but I'm not sure. 22 subject line and who it's from. Is there anything else
Page 3 Page 5
1 Q Was this a final memo because I know you also 1 in the introductory part of the memo before you get to
2 mentioned that you had seen previous drafts of at least 2 the text? Is there any other information?
3 some of the White House Counsel memos? 3 MS. HONG: Objection.
4 A This memo is the final memo. 4 A Can you repeat that question?
5 Q How do you know the memo you saw is the final 5 Q You've described for me what I call the two --
6 version? 6 the subject line. You've described the two line, who the
7 A Because it is a copy of the memo that is sent 7 memo is to, and that it's from Fred Fielding. Before you
8 to various White House offices. 8 get to the actual text of the memo, is there any other
9 Q The earlier iderations did not have that 9 information in the top -- and the date?
10 information? 10 A No, but I do want to be clear. I don't know if
11 A I saw no earlier ideration of this memo. 11 the memo says it's from White House Counsel or from Fred
12 Q As far as the Fielding 2008 memo, you only saw 12 Fielding. I remember that his name is in the memo so
13 the final memo? 13 it's clear that it's from Fred Fielding as White House
14 A That is correct. 14 Counsel.
15 Q To whom is that memo directed? 15 Q Other than the information you've given
16 A The memo is directed specifically to the 16 there's no other information before you get to the body
17 National Security Counsel staff, the White House office, 17 of the memo?
18 CEA, Office of Administration and Presidents Foreign 18 A No.
19 Intelligence Advisory Board. 19 Q Does White House Counsel Fielding explain why
20 Q Is it directed to individuals within any of 20 he's issuing a memo at this time?
21 those entities? 21 A He's issuing the memo to ensure that there is
22 A No. 22 a full and complete record of the Bush Administration.
2 (Pages 2 to 5)
6d8d7d0f-06b1-44fc-a15f-a9754049d8e9
ROUGH DRAFT
Page 6 Page 8
1 Q Is that the language that he used? 1 they're an important part of history.
2 A That's probably not the exact language that he 2 Q In that first part, is there any other
3 used. I've giving you my paraphrasing of why he is 3 information that he gives as to Vice Presidential
4 issuing the memo. 4 records?
5 Q Does he explain in the beginning of the memo 5 A Not in the very first part.
6 why he's issuing it? 6 Q From there, where does the memo go?
7 A He explains in the beginning of the memo that 7 A To what is covered under the Presidential
8 it's important to preserve Presidential records for 8 Records Act.
9 history. 9 Q Is the Presidential Records Act the primary
10 Q How long is the memo? 10 legal authority that he cites?
11 A It's ten pages. 11 MS. HONG: Objection. Vague.
12 Q Once he authors that explanation of why it's 12 Q You can answer.
13 being issued, what does the memo say next? 13 A The Presidential Records Act is one of legal
14 A In that explanation of it's important to 14 authorities he cites.
15 preserve Presidential records, he does a footnote and he 15 Q What other legal authorities does he cite?
16 says that -- no, he doesn't do a footnote. I'm sorry. In 16 A He cites the Federal Records Act. Those are
17 that preliminary part, he also says it's important to 17 the two.
18 preserve Vice Presidential records. 18 Q Does he cite any Executive Orders?
19 Q He expressly mentions Vice Presidential 19 A He does not cite any Executive Order.
20 records? 20 Q Does he cite to any NARA Regulations?
21 A Yes. 21 A Yes, he cites to the NARA Regulations on
22 MS. HONG: I just want to remind you to let 22 Federal records and the NARA Regulations on the
Page 7 Page 9
1 Ms. Weismann finish her questions before you answer. 1 Presidential records.
2 THE WITNESS: Okay. 2 Q Do you recall specifically what regulatory
3 MS. HONG: Thank you. 3 sites he mentions?
4 Q He mentions Presidential records and he 4 A Like in what part of the Code of Federal
5 mentions Vice Presidential records. Is there any other 5 Regulations?
6 category of records that he mentions in that opening 6 Q Well, there is more than one regulation that
7 part of the memo? 7 covers both Presidential and Federal Records other than
8 A No, there is not. 8 that, is there not?
9 Q Does he explain the difference between 9 A Yes, he is citing to the definition part of
10 Presidential and Vice Presidential records or a 10 the Code of Federal Regulations as to what a Federal
11 difference? 11 record is and the definition part of the Code of Federal
12 A In that first part of the memo -- in the first 12 Regulations dealing with Presidential records.
13 part of the memo he is saying what is important to 13 Q Does he also cite to the definitional part of
14 preserve. Later on in the memo, he explains that Vice 14 any definition of a Vice Presidential record?
15 Presidential records are those records that are received 15 A He gives the general statutory site for the
16 or created by the Office of the Vice President. 16 Presidential Records Act of 44 USC 2201 through 2207 and
17 Q Let's focus in on just this first part. He 17 2207 is Vice Presidential records.
18 mentions Presidential and Vice Presidential records and 18 Q Beyond that, are there any regulations that he
19 I just want to make sure I understand. Tell me again 19 cites to that govern Vice Presidential records
20 exactly what he says with respect to Vice Presidential 20 specifically?
21 records in that first part. 21 A No.
22 A That it's important to preserve them because 22 Q I'm sorry; you said this next section
3 (Pages 6 to 9)
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1 generally talks about what? 1 circulated in the course of conducting official,
2 A What is a Presidential record, the definition 2 ceremonial or statutory duties, e-mails would qualify
3 of Presidential record. 3 both on the e-mail record-keeping system, which
4 Q Does he do more than -- does he cite expressly 4 automatically archives Presidential and Vice
5 or quote expressly from the Presidential Records Act in 5 Presidential records and e-mails that are on private
6 defining what a Presidential record is? 6 machines are to be either forwarded your Presidential
7 A Yes. 7 record or Vice Presidential record address or are to be
8 Q Does he add any other language to that 8 copied and put in the Presidential record's file. A
9 definition beyond what the statute says? 9 Blackberry would be covered if it meets the definition
10 MS. HONG: Objection. Vague. 10 of Presidential record.
11 A He adds -- he cites the definition in the Act 11 Q In that section, does he give any examples of
12 and gives some contextual information, but it's only 12 Vice Presidential records?
13 contextual to the statutory site. 13 A Not specifically Vice Presidential records in
14 Q Explain what you mean by contextual 14 that particular section. I'm a little unclear on that
15 information. 15 because that -- where on page 2, on page 3 he does talk
16 A He says that Presidential records are those 16 about Vice Presidential records.
17 records created by staff and instead of specifically 17 Q Is there anything else on page 2 other than
18 quoting what the language is in the Presidential Records 18 specific examples of what Presidential records are that
19 Act, as I remember it he said staff in the course of 19 you haven't mentioned?
20 conducting their official ceremonial and then he quotes 20 A Not that I remember.
21 specifically from the Act. 21 Q Then you said that page 3 -- is page 3 devoted
22 Q In this section, does he have -- does he 22 exclusively to Vice Presidential records to your
Page 11 Page 13
1 address specifically Vice Presidential records? 1 recollection?
2 A Yes, there is a footnote 1 that says that this 2 A No.
3 memo has been distributed to the Offices of Vice 3 Q Why don't you tell me what's on page 3?
4 President and a footnote 2 that says Vice Presidential 4 A Page 3 is giving some more examples and says
5 records are covered under the provisions of the 5 that when he is talking about copying things for the
6 Presidential Records Act. 6 Presidential record file, if you send a copy out --
7 Q In either of those footnotes, does he give a 7 there is a part of page 3 that says if you send things
8 definition of Vice Presidential records? 8 to the Office of the Vice President that those are Vice
9 A No. 9 Presidential records. So, you should make a copy for the
10 Q Is there any other information in either of 10 Presidential record file and similarly, those things
11 those footnotes that pertain to Vice Presidential 11 that are sent from the Vice President's Office to the
12 records other than what you've already described? 12 Presidential record, since it would be received by the
13 A The statutory site, which would be 2207. 13 Presidential record file, a copy should be maintained
14 Q What does the memo cover next? 14 for the Vice Presidential record file.
15 A The preamble, the definition and then it goes 15 Q It's describing a system if I'm understanding
16 into examples of what would be Presidential records. 16 correctly -- and tell me if I'm not -- where
17 Q Do you recall any of those examples? 17 Presidential records are maintained separately from Vice
18 A Yes. 18 Presidential records?
19 Q What are they? 19 A That is correct if I understand your question.
20 A Documents such as memos that would be created 20 Q As described in this memo, are Vice
21 in the course of conducting official, statutory or 21 Presidential records maintained separately than
22 ceremonial duties, notes that would be created and 22 Presidential records?
4 (Pages 10 to 13)
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1 A I guess I'm a little confused. Vice 1 A My interpretation in reading the memo is the
2 Presidential records in every administration have been 2 language is generic as is the Presidential Records Act,
3 maintained separately from Presidential records. 3 which once you make clear that the Presidential Records
4 Q I'm focusing right now on this administration. 4 Act applies to Presidential and Vice Presidential
5 You just described a part of page 3 I believe it was 5 Records, you're assuming that anything that is said in
6 where you said it mentions that if you -- and I'm 6 the memo applies to any of the categories.
7 paraphrasing your testimony so if I'm wrong just tell 7 Q Does the memo contain a definition of personal
8 me. My understanding was you were describing where it 8 records?
9 said if you're sending a memo to the Office of the Vice 9 A It contains the language in the statute and
10 President from a Presidential component, it's going to 10 gives examples.
11 be treated both as a Vice Presidential record and a 11 Q It essentially quotes from the statue as to
12 Presidential record, is that correct? 12 this is how we define -- this is how personal records
13 A That is correct. 13 are defined, is that right?
14 Q Similarly, if something is sent from the 14 A That is correct.
15 Office of the Vice President to a Presidential 15 Q It doesn't deviate in any way from the
16 component, it will also be treated both as a Vice 16 statutory definition? By statutory, I mean the
17 Presidential record and a Presidential record, is that 17 Presidential Records Act definition of personal records.
18 correct? 18 A No, it does not.
19 A That is correct. 19 Q What are some of the examples they give?
20 Q So it would be maintained in two separate 20 A The examples all are things such as purely
21 collections if you will of records? One a Presidential 21 personal items, purely political items, items
22 collection of records and one a Vice Presidential 22 documenting an election of the President, state, local
Page 15 Page 17
1 collection of records, is that correct? 1 officials, diary, notes, memos that are not circulated
2 A Yes. 2 or used in the course of official, ceremonial or
3 Q For purposes of complying with the 3 statutory duties, purely personal items.
4 Presidential Records Act, does the memo describe any 4 Q What is the next part of the memo after this
5 differences between Presidential records and Vice 5 section?
6 Presidential records beyond who the creator is? 6 A The next part of the memo deals with guidance
7 A No. 7 in terms of how to retire your files to the White House
8 Q Other than what you've described, is there 8 Office of Records Management.
9 anything else on page 3 that deals with Vice 9 Q Is it your understanding that that guidance
10 Presidential records? 10 applied equally to Presidential and Vice Presidential
11 A No. 11 records?
12 Q What is the rest of the discussion then on 12 A In that case, it's more than my understanding
13 page 3? 13 because I know that Vice Presidential records are being
14 A On page 3? 14 retired in this administration to the Office of Records
15 Q Yes. 15 Management those that are unclassified.
16 A I'm believing it's page 3 or page 4 that then 16 Q What was the guidance that the memo gave on
17 goes into what can qualify as personal records. 17 how to retire records?
18 Q Is that discussion talking only about 18 A To do folder title lists of what you are
19 Presidential or does it also include Vice Presidential 19 retiring -- typed folder title lists and to -- given
20 records? 20 that there is Presidential transition going on to try to
21 A This would be an interpretation on my part. 21 retire records as soon as you can. Let me get a cough
22 Q What was your interpretation? 22 drop.
5 (Pages 14 to 17)
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Page 18 Page 20
1 Q Take your time. 1 again?
2 A Can you repeat your question again? 2 A I want to be clear in that I am not -- I am
3 Q I was asking what the guidance was on how to 3 saying that it is -- when you asked me whether there's a
4 retire records. 4 definition I'm saying that the definition is 2201
5 A Just if they could retire records as soon as 5 through 2207. 2207 applying specifically to the Vice
6 possible and pretty generic basic guidance. 6 President and then there is a part of the memo that says
7 MS. HONG: Can we take a break for a minute? 7 those items received by the Office of the Vice President
8 THE WITNESS: I'm fine. 8 are Vice Presidential record. Then I'm giving you my
9 MS. HONG: Back on the record. 9 interpretation that will bring in the definition of 2201
10 A Pretty basic generic guidance. 10 in terms of what the creator received means.
11 Q Is that the first express mentioned of the 11 Q Because the Court in an order dated November
12 transition that you recall? 12 12, 2008 describes the memo as containing "at least one
13 MS. HONG: Objection. Vague. 13 definition of what constitutes a Vice Presidential
14 A I believe there's mention up front in the 14 record." So I am relying on the Court's description of
15 first couple of paragraphs. 15 the memo as containing a definition and I want to make
16 Q Is it your understanding having read the memo 16 sure that you have given me what that definition is. So
17 that part of the reason it was issued was because of the 17 given your knowledge of what's in the memo and the
18 upcoming transition? 18 Court's language, which I recognize is not your
19 A Yes. 19 language, what would be your best understanding of what
20 Q Do you know why it was sent only to the five 20 the Court was referring to as the definition of what
21 offices that you've delineated? 21 constitutes a Vice Presidential record?
22 A Those are Presidential record creating 22 MS. HONG: Objection. Vague.
Page 19 Page 21
1 offices. 1 A I think we'd have to ask the judge. I'm not
2 Q Once it talked about retiring records to the 2 clear as to how the judge is interpreting the memo.
3 White House Office of Records Management, what was the 3 Q Other than the statutory reference to Vice
4 next part of the memo? 4 Presidential records, you don't recall a separate
5 A That is the last part of the memo. 5 definition?
6 Q Anywhere within the memo does it contain a 6 A I don't recall a separate definition for Vice
7 definition of Vice Presidential records? 7 Presidential record. I recall a generic definition for
8 A Not other than the statutory site. 8 what are Presidential and Vice Presidential records
9 Q There's no other definition that you can 9 under the Presidential Records Act and I recall -- more
10 recall? 10 than recall. I know there's a part of the memo that
11 A As I mentioned earlier, I said that it said 11 deals with if you are sending something to the Office of
12 that Vice Presidential records were important to 12 Vice President that is a Vice Presidential record and
13 preserve and later on, it says that records that are 13 the first part, which I mentioned to you, says that Vice
14 received by the Office of the Vice President in 14 Presidential records are important to preserve.
15 conducting their constitutional, statutory, official or 15 Q Does the memo reference any pending
16 ceremonial duties are Vice Presidential records. 16 litigation?
17 Q The language again that it used was -- are you 17 A Not that I remember.
18 quoting verbatim? 18 Q Does the memo identify any contact person?
19 A I'm quoting as I remember that language. 19 A Any?
20 Q I just want to make sure we have it down. The 20 Q Any person to contact with any questions?
21 specific language you recall the memo using to describe 21 A At the end of the memo, it does identify that
22 or define what are Vice Presidential records is what 22 if you have questions you can contact White House
6 (Pages 18 to 21)
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Page 22 Page 24
1 Counsel and it gives the number or the White House 1 would've said differently.
2 Office of Records Management. 2 A Where it says to segregate -- when practible,
3 Q Beyond what you've already testified to, does 3 segregate personal from record material. It says that in
4 the memo anything additional about why it is including 4 a memo you can segregate personal from the record
5 Vice Presidential records? 5 material, which I believe you have the legal authority
6 A Because they're covered under the terms of the 6 to do under the Act, but NARA's guidance would be not to
7 Presidential Records Act. 7 do that segregation below the document level.
8 Q Does the memo reference any additional 8 Q I'm trying to understand how the memo consumed
9 guidance that will be forthcoming? 9 ten pages since it sounds like it was fairly limited in
10 A No. 10 scope. Was it a question of how many examples it gave?
11 Q Does the memo rescind any past guidance? 11 Was that what a lot of the text was?
12 A No. 12 A I didn't think it was very limited. I thought
13 Q Does it reference any past guidance? 13 it was fairly robust. It talks about preservation, it
14 A Not that I remember. 14 goes into the statutory site, it then gives examples in
15 Q To your recollection, does the memo state 15 somewhat different sections and it then talks about how
16 anything that differs from any previous memo from the 16 to retire records to records management. So, that takes
17 White House Counsel's office? 17 about ten pages.
18 A Actually -- this is on my memory because I 18 Q To the best of your recollection, how many
19 have not looked at the previous memos in a long time, 19 references in the memo are there to Vice Presidential
20 but as I remember, this is more explicit in terms of 20 records?
21 Vice Presidential records. 21 A There are four. I have given you the four.
22 Q What do you mean by more explicit? 22 Q Does the memo reference any previous White
Page 23 Page 25
1 A It is being very clear that it is distributed 1 House Counsel memoranda that has been issued on this
2 to the Office of the Vice President that these records 2 subject?
3 are to be preserved if they fall under the same statute, 3 A Can you repeat the question again?
4 if you send items to the OVP, they are Vice Presidential 4 Q Does the memo reference any previously issued
5 records and that they are covered under the terms -- I 5 White House Counsel memoranda on this issue?
6 think I'm repeating myself -- of the Presidential 6 MS. HONG: Objection. I think that's been
7 Records Act. 7 asked and answered. You can answer the question.
8 Q Is there anything in the memo that is contrary 8 A I do not remember. I do not think so.
9 to NARA guidance? 9 Q I'm still troubled by the Court's order that
10 A No. 10 suggests -- not suggests. It states quite clearly that
11 Q Is there anything in the memo that you 11 it contains a definition of what constitutes a Vice
12 disagree with? 12 Presidential record, but you cannot recall any other
13 A Personally? 13 language in the memo that could fairly be characterized
14 Q In your capacity as a NARA person involved in 14 as the definition that you haven't identified so far?
15 Presidential record keeping issues. 15 MS. HONG: Objection. It misstates her
16 MS. HONG: Objection. Vague. 16 testimony.
17 A There are some things that I would like -- I 17 MS. WEISMANN: I'm asking her. Not stating.
18 would probably like said differently. 18 A I would agree that that's not what I said.
19 Q Do you think the way -- these things are 19 What I said is it's very clear on the definition and
20 incorrect? 20 totally in keeping with the statutory definition in 2201
21 A No. 21 and in 2203, it gives the definition of record and then
22 Q Give me an example of something that you 22 who manages the record and it is possible that the judge
7 (Pages 22 to 25)
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Page 26 Page 28
1 in taking that is applying it to Vice Presidential 1 A No.
2 records. Additionally, there are four specific times 2 MS. WEISMANN: I think that's it.
3 Vice Presidential records are mentioned. To me, the 3 MS. HONG: We'd like to reserve our right to
4 definition of record is in 2201 of the Act. I don't know 4 review the transcript.
5 how the judge is reading what Mr. Fielding is writing. 5 (Witness will read and sign.)
6 There are certainly definitions in the memo in terms of 6
7 what qualifies as record and what would be considered 7
8 non-record or personal material. 8
9 Q Is there any reference in the memo to 9
10 legislative records of the Vice President? 10
11 A No. 11
12 Q Are there any specific examples given of 12
13 records that are not Vice Presidential records -- 13
14 specifically Vice Presidential records? 14
15 MS. HONG: Objection. Vague. 15
16 A Could you repeat the question? 16
17 Q Does the memo give any examples of what is not 17
18 a Vice Presidential record? 18
19 MS. HONG: Objection. Vague. 19
20 A No more so than it gives examples of what 20
21 would not qualify as Presidential record. 21
22 Q I'm just trying to explore if it in any way 22
Page 27
1 separates Vice Presidential records when it gives the
2 examples and says the following are not examples -- or
3 the following would not be -- as to Vice Presidential
4 would not be records?
5 A No, the examples it gives a personal -- of
6 record and of copies of materials or pamphlets, which it
7 gives, which wouldn't qualify, newspapers. They're all
8 generic.
9 Q Right. It doesn't tie them into either
10 Presidential or Vice Presidential specifically, is that
11 correct?
12 A That is correct with the exception of the one
13 part where I mentioned if things are sent to the OVP.
14 Q Right, but that's talking about what is a
15 record?
16 A That's right.
17 Q My question went to what is not.
18 Are there any individuals named in the memo
19 other than Mr. Fielding himself?
20 A Well, there's the -- White House Office is
21 named but --
22 Q Right, but individuals?
8 (Pages 26 to 28)
6d8d7d0f-06b1-44fc-a15f-a9754049d8e9
EXHIBIT 6
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No.: 08-1548 (CKK)
)
THE HONORABLE RICHARD B. CHENEY, )
VICE PRESIDENT OF THE UNITED STATES )
OF AMERICA, et al., )
)
Defendants. )
__________________________________________)
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ STATEMENT OF MATERIAL

FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT1
In this response, defendants incorporate in full their statement of material facts
submitted in support of their motion for summary judgment and respond to plaintiffs’
statement of material facts specifically as follows:
1. This paragraph does not contain “references to the parts of the record relied on to
support the statement” as Local Civil Rule 7(h) requires, or comport with the Supreme
Court’s requirement that summary judgment must be supported by “affirmative
evidence.” Anderson v. Liberty Lobby, 477 U.S. 242, 256-67 (1986) (stating also that
“mere allegations or denials of [a] pleading” are inadequate to establish facts for
1
Defendants present their response to plaintiffs’ statement of material facts in support of
their cross-motion for summary judgment in the alternative, only, to their motion to
dismiss. For the reasons set forth in defendants’ motion to dismiss, plaintiffs’ Amended
Complaint must be dismissed in its entirety. Defendants present their response only in
the event the Court finds that any claim survives the threshold defenses, and in no way
concedes that this Court has jurisdiction to entertain plaintiffs’ claims or that plaintiffs
raise claims upon which relief may be granted. See Order Setting Schedule for Further
Proceedings [38] at 5 (requiring only “one final round of briefing”).
summary judgment). Nor does the paragraph contain facts material to plaintiffs’ four
claims. See id. at 248 (“As to materiality, the substantive law will identify which facts
are material. Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes
that are irrelevant or unnecessary will not be counted.”). Although plaintiff CREW must
establish standing to support its claims with competent evidence, its “interest in accessing
historical and vice presidential records” is not material to plaintiffs’ four substantive
claims within the meaning of Federal Rule of Civil Procedure 56.
2. This paragraph does not contain facts material to plaintiffs’ four claims. See
Liberty Lobby, 477 U.S. at 248 (“As to materiality, the substantive law will identify
which facts are material. Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.”). Although
plaintiff Stanley I. Kutler must establish standing to support his claims with competent
evidence, his “plans to research Vice President Cheney’s advocacy of something he calls
the ‘unitary theory’” or his “interest in accessing historical presidential and vice
presidential records” are not material to plaintiffs’ four substantive claims within the
meaning of Federal Rule of Civil Procedure 56.
that are irrelevant or unnecessary will not be counted.”). Although plaintiff Martin J.
Sherwin must establish standing to support his claims with competent evidence, his
“interest in accessing historical and vice presidential records” is not material to plaintiffs’
four substantive claims within the meaning of Federal Rule of Civil Procedure 56.
that are irrelevant or unnecessary will not be counted.”). Although plaintiff AHA must
that are irrelevant or unnecessary will not be counted.”). Although plaintiff OAH must
that are irrelevant or unnecessary will not be counted.”). Although plaintiff SAA must
plaintiff SHAFR must establish standing to support its claims with competent evidence,
its “interest in accessing historical and vice presidential records” is not material to
plaintiffs’ four substantive claims within the meaning of Federal Rule of Civil Procedure
56.
plaintiffs SHAFR and OAH must establish standing to support their claims with
competent evidence, Anna Kasten Nelson’s “research in five presidential libraries and
with the Nixon papers” is not material to plaintiffs’ four substantive claims within the
meaning of Federal Rule of Civil Procedure 56.
plaintiffs SHAFR and OAH must establish standing to support their claims with
competent evidence, the mandatory review process is not material to plaintiffs’ four
substantive claims within the meaning of Federal Rule of Civil Procedure 56.
Factual disputes that are irrelevant or unnecessary will not be counted.”). It is also based
on unsupported, conclusory statements from a witness who lacks the personal knowledge
to competently testify about the incumbent Vice President’s “power over policymaking
decisions.” See Fed. R. Evid. 602.
Factual disputes that are irrelevant or unnecessary will not be counted.”). It is also based
on unsupported, conclusory statements from a witness who lacks the personal knowledge
to competently testify on behalf of all “American citizens.” See Fed. R. Evid. 602. The
paragraph is also based on a hypothetical that has been categorically disproved in
Defendants’ Statement of Fact. Compare Pls.’ SMF ¶ 11 (“If Vice President Cheney
chooses to remove his records from public domain . . .”) with Defs.’ SMF ¶¶ 2-5 (and
record citations to the contrary).
12. Disputed to the extent plaintiffs assert that the OVP “excludes from the
mandatory reach of the PRA records generated by [the Vice President in his] legislative
capacit[y].” The Vice President’s legislative records are being managed under the PRA.
Id. at 61:17-22 (explaining that legislative records are treated “the same as the executive
records are kept. Everything is considered a document that has to be kept or filed.”); see
also Ex. 3, Smith Rough Dep. Tr. at 199:6-9 (“They confirmed to NARA that in response
to a question we asked that they were treating records that Cheney created in the Senate
office as vice presidential record.”); 202:10-15 (“NARA specifically asked Gary Stern
[NARA’s general counsel], asked how were they treating legislative or records created in
the Senate office and they responded over I think it was several conversations, not all of
which I were involved in, that they were treating them as vice presidential record.”);
203:7-12 (same). And the OVP has not relied on any guidelines issued by any other
defendant to exclude any vice presidential records of the vice presidency of Richard B.
Cheney from the requirements of section 2207 of title 44. See Defs.’ SMF ¶ 3.
13. To the extent plaintiffs assert a legal interpretation of the phrase “constitutional,
statutory, or other official or ceremonial duties,” defendants respond with the factual
reality that the incumbent Vice President performs no functions other than his functions
as President of the Senate and the functions of the vice president specially assigned to the
vice president by the President in the discharge of executive duties and responsibilities.
Accordingly, all official records received or created by the OVP are treated as vice
presidential records under the PRA. See Ex. 2, Dep. Tr. of Claire M. O’Donnell, 37:15-
38:1 (“Q: And what is your understanding of the documents that the Vice President is
required to transfer to NARA at the end of his administration? A: All of his executive
and legislative files. Q: Okay. Do you have any more specific understanding than that?
A: Any documents that he has either created or received in his official functions.”);
55:16-20 (“Again, every document that we receive or create in our capacities, meaning
the staff of the Vice President, to assist him in his duties are to be kept for the
Presidential Records Act.”); 54:6-9 (same); 99:19-100:22 (explaining that OVP’s
guidance is to transfer all vice presidential records as defined under the PRA that have
been created or generated during the vice presidency of Richard B. Cheney); 102:7-
103:14 (explaining that “for all practical purposes, everything is considered official” and
maintained under the PRA, except “something really personal in your personal life
outside of anything official,” like “a bank statement or a thank you note for a wedding
reception); 119:11-12 (“[I]t’s the general policy everything is a presidential record.”);
128:17-129:1 (Q: “If a document is covered by the PRA, and by that I mean if a
document is vice presidential, if it meets the definition of vice presidential, of a vice
presidential record within the meaning of the PRA, is it your understanding that that
document has to be preserved? A: Yes.”); 136:12-16 (“I know that, again in general,
everything that is prepared by any staff member for the Vice President or by the Vice
President is considered a [vice] presidential record.”); 139:5-140:2 (explaining that
“guidance that the staff that we trust” has been given is to preserve records that have been
created by the Vice President’s staff); 140:8-12 (“I believe all documents, all documents
in the Vice President’s office, created or received by the Vice President or the Vice
President’s staff are being kept under the Presidential Records Act.”); 141:4-7 (“To the
best of my knowledge, like all other records, if records have been prepared for the Vice
President, they are being kept under the Presidential Records Act”); 141:17-19 (same);
142:6-14 (same); 142:18-143:6 (same); 144:22-145:8 (same); 147:11-13 (same); 147:20-
149:2 (same); 151:5-8 (“If an employee of the Office of the Vice President keeps records
that have to do with the Vice President’s executive or legislative duties, they are kept for
the PRA); 156:18-21 (“I believe that any documents that have been created or received
by the Vice President and her staff or his staff are considered [vice] presidential
documents.”); 77:15-22 (“I could only answer that I don’t get into the legalese of all the
Vice President’s duties. We view it that everything he does he is doing on behalf of the
President and that’s our practice and that’s the guidance I give to people that, everything
you are doing here is in support of the Vice President and it’s considered a [vice]
Presidential document.”); 78:9-13 (“Again, if he is – I don’t get into the legalese. If there
are documents created, or received on behalf of his duties, and if he sits on that board
because he is Vice President, then we would consider it a [vice] Presidential document.”);
78:14-79:2 (similar); 61:17-22 (explaining that legislative records are treated “the same
as the executive records are kept. Everything is considered a document that has to be
kept or filed.”); see also Ex. 3, Smith Rough Dep. Tr. at 199:6-9 (“They confirmed to
NARA that in response to a question we asked that they were treating records that
Cheney created in the Senate office as vice presidential record.”); 202:10-15 (“NARA
specifically asked Gary Stern asked how were they treating legislative or records created
in the Senate office and they responded over I think it was several conversations, not all
of which I were involved in, that they were treating them as vice presidential record.”);
203:7-12 (same); Ex. 2, O’Donnell Dep. Tr. at 79:22-80:5 (stating that Vice President
“supports the guidance that I have been asked to give out and the processes, processes
that we follow”); 87:21-88:6 (stating that it is the intent of the Vice President to include
“all of the papers, records, notes, recordings, memo that the Vice President has created
since January 20, 2001, . . . as vice presidential materials turned over to NARA under the
Presidential Records Act”).
Factual disputes that are irrelevant or unnecessary will not be counted.”). But the
allegations are disputed to the extent plaintiffs allege that Ms. O’Donnell lacks personal
knowledge about the policies and guidelines governing vice presidential records of the
OVP. See Ex. 2, O’Donnell Dep. Tr. at 19:18-20 (“Q: Do you have responsibility for
records management within the Office of the Vice President? A: Yes.”); 21:13-16 (“Q:
Have you received any training specifically on records management since coming to the
OVP? A: Yes. Q: And describe for me what that training has been. A: It was a memo
that we received when when we came on board and we have been reminded on regular
basis verbally and in ethics briefings.”); 25:19-27:14 (describing guidance at staff
meetings and ethics briefings about the PRA); 37:2-19 (explaining familiarity with the
Presidential Records Act because “it was part of the orientation when we came on and
it’s just been a practice that I have been told to make sure the Vice President’s Office
practices”); 54:1-3 (“I have general knowledge of the practices that we have all been told
to adhere to.”); 54:15-16 (“I just go ahead and make sure everybody understands the
rules.”); 87:21-88:6 (explaining understanding that Vice President would transfer “all of
the papers, records, notes, recordings, memos that the Vice President has created since
January 20th, 2001 . . . as vice presidential material turned over to NARA under the
Presidential Records Act”); 95:19-96:4 (explaining understanding of the OVP’s guidance
and practices); 96:11-97:6 (explaining that her responsibilities include making “people . .
. aware of the guidance and the practices they should be adher[ed] to”); 99:19-100:22
(explaining understanding that the OVP complies with PRA through “interpretation that I
have always taken from the guidance and that I know the meaning, the guidance that we
have been given because it’s given on a regular basis”); 102:7-104:2 (explaining that
“personal” records are very limited to records that are “really personal in your personal
life outside of anything official” like a “bank statement or a thank you note”); 130:1-5
(“The general guidance of any document that is created or received in our capacities to
support the Vice President and in his capacity and his executive responsibilities, would be
covered under the PRA.”); 139:16-140:2 (“Q: And do you know whether in fact those
records are being preserved under the Presidential Records Act? A: If they have been
created by the Vice President’s staff, I believe they are being preserved. Q: What is the
basis for your belief? A: The guidance that the staff that we trust has been given.”); see
also id. at 66:4-69:8 (“Q: Have you in any other situation used the specially assigned
language to described the functions of the Vice President? A: I have used it myself. Q:
And what is the context of your use? A: In chatter of what does the Vice President really
do. . . . He is there to take on responsibilities that the President assigns to him. He has no
other responsibilities than to assist and work for the President. Q: And where did your
understanding of that function come from? A: When we first came into office, that’s
what we were told; we were there as Vice Presidential staff to assist the Vice President in
carrying out his functions in working for the President . . . He always describes the Vice
President’s Office as the office that is there to assist the Vice President in carrying out his
duties that he has been assigned to do by the President.”); id. at 83:18-84:1 (Q: Is it your
understanding that everything that the Vice President does in his executive capacity is
specially assigned by the President? A: In general terms and in specific terms, yes. It’s
all – they are all assigned by the President); id. at 86:13-87:2 (“When I say specially
assigned, I don’t mean, you know, everything [the Vice President] does, [that] it’s a
check list that they [the Vice President and President] go through every day. It’s kind of
a general term. . . [I]t’s just a term of art that the Vice President’s office uses. We are
here to support the President.”); id. at 92:5-93:10 (“Q: But if – if this definition
contained in the Plum Book and advanced by David Addington is correct, if the Vice
President is not part of the Executive Branch, how do you think he can perform executive
functions, as you’ve described them in your declaration? A: I wouldn’t want to get into
the legalese of it. I just know he does perform executive duties assigned to him by the
President. Q: And you know that because? What’s the basis for your knowledge? A:
He assigns the staff different assignments, the Vice President does, to carry out functions
for him as his, as part of his executive duties . . . That’s the way it’s been explained to
me. General knowledge.”); id. at 94:3-11 (“Q: Going back to your declaration that you
submitted in this case, the one we’ve been talking about, why did you choose to include
the word executive in paragraph five in your description of functions specially assigned
to the Vice President by the Vice President in the discharge of executive duties and
responsibilities? A: I think just to distinguish that he also has legislative

responsibilities.”); id. at 160:17-161:1 (“People are assigned duties from the Vice
President or the Vice President’s Chief of Staff. I don’t know that they are assigned
things with the understanding that the President has specifically asked. It’s just kind of
the understanding. That’s really what the Vice President it there for, to support the
President in his duties.”); id. at 172:10-22 (“Q: And then in that same paragraph, the first
sentence, back on page 2, it states: the Vice President relies in substantial part on OVP
personnel for support in the performance of his official functions. What – as used herein,
what does that term official functions include? A: All of his executive and legislative
functions. Q: And does that term differ in any way from those functions that are
specially assigned by the President? A: It encompasses those functions, specially
assigned.”).
Factual disputes that are irrelevant or unnecessary will not be counted.”). But the
allegations are disputed to the extent plaintiffs allege that Ms. O’Donnell lacks personal
knowledge about the policies and guidelines governing vice presidential records of the
OVP. See supra Defs.’ Response ¶ 14.
16. This paragraph does not contain facts material to plaintiffs’ four claims. See id. at
248 (“As to materiality, the substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.”). But the allegations are disputed to the extent
plaintiffs allege that Ms. O’Donnell did not provide her understanding of the phrase
“functions of the vice president specially assigned to the vice president by the president
in the discharge of executive duties and responsibilities,” see generally Defs.’ Reply at
Part III.B, and to the extent plaintiffs’ allege that the witness had no personal knowledge
about the policies and guidelines governing vice presidential records of the OVP. See
Defs.’ SMF ¶ 4; see also Ex. 2, O’Donnell Dep. Tr. at 79:22-80:5 (stating that Vice
President “supports the guidance that I have been asked to give out and the processes,
processes that we follow”); 87:21-88:6 (stating that it is the intent of the Vice President to
include “all of the papers, records, notes, recordings, memo that the Vice President has
created since January 20, 2001, . . . as vice presidential materials turned over to NARA
under the Presidential Records Act”).
Factual disputes that are irrelevant or unnecessary will not be counted.”).
//
//
//
Respectfully submitted this 31st day of December, 2008.
GREGORY G. KATSAS
Assistant Attorney General
JOHN R. TYLER (D.C. Bar No. 297713)

Assistant Branch Director
/s/ Helen H. Hong

HELEN H. HONG (CA SBN 235635)
Trial Attorney
U.S. Department of Justice, Civil Division
P.O. Box 883, 20 Massachusetts Ave., NW
Washington, D.C. 20044
Telephone: (202) 514-5838
Fax: (202) 616-8460
helen.hong@usdoj.gov
Counsel for Defendants

CREW v. Cheney Et Al: Regarding VP Records: 12/31/08 - Cheneys Reply in Support of Motion To Dismiss

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CREW v. Cheney Et Al: Regarding VP Records: 12/31/08 - Cheneys Reply in Support of Motion To Dismiss

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Case 1:08-cv-01548-CKK Document 43 Filed 12/31/2008 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT

DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISMISS OR,

Because of the “separation of powers concerns that were implicated by legislation

Procedure Act, 5 U.S.C. § 701. See Defs.’ Mot. at 10-25.

It is only through a misinterpretation of controlling law, an insistence on interpreting

duties as subject to the PRA.

contradicted interpretation of “specially assigned.” Plaintiffs entirely disregard the considerable

inadequate to oppose summary judgment; “discredited testimony is not normally considered a

conform with the terms of the PRA.

“Record-keeping requirements of the FRA are subject to judicial review and

(Armstrong III) (emphasis added). Notwithstanding this clear proscription on PRA-based

to declaratory judgment relief.

In assessing whether a judicially-enforceable right was in fact intended in a statute, the

The Supreme Court’s careful differentiation between explicit rights-creating language

contains only definitions of “documentary material,” “Presidential record,” “personal records,”

and cannot support a private right under the PRA.

B. Armstrong I, Armstrong II and Armstrong III Confirm the Absence of a Judicially

Notwithstanding plaintiffs’ assertions, it remains that Armstrong I is controlling here.

operational definition of presidential records materials properly subject to the FOIA.”

reviewable. See Defs.’ Mot. at 18-23.

relief from the Vice President, the OVP or EOP.

the FRA- and FOIA-based claims before it.

in Armstrong I thus rejected judicial review of the President’s classification of information

2008) (HHK/JMF). There, plaintiffs

records guidelines for appropriately pled FRA- and FOIA-based claims.

President’s administration. That agreement purported to provide then-President Bush with

enforcement; those of the PRA are not.” Armstrong III, 90 F. 3d at 556.

language, structure or history of the PRA.

right allegedly violated, no other source of a right—or independent cause of action—need be

question sufficient to confer subject matter jurisdiction.”). As demonstrated in detail in the

precluding APA review likewise divests this Court of mandamus jurisdiction.

the definitional provision alone creates any duty subject to mandamus.10

Defs.’ Mot. at 18-25.

“designation of person or persons to act for former Presidents,” 36 C.F.R. §§ 1270.20–1270.22;

practices. Such claims are not reviewable as explained above.

to legislative-related functions. Claims Three and Four should accordingly be dismissed.

III. Plaintiffs’ Lack of Standing Requires that their Claims be Dismissed

A. Plaintiffs Lack Imminent Injury

from this action.

be harmed in my ability to conduct presidential research . . ..”); 2d Kasten Decl. ¶ 7 (“Most of

B. Plaintiffs Lack Any Injury-in-Fact

plaintiffs’ mischaracterization of the record in purportedly “supporting” their only claim to

injury: that the “specially assigned” language is under-inclusive.

Assertions in Plaintiffs’ Contrary Evidence in the Record

Assertions in Plaintiffs’ Contrary Evidence in the Record

Assertions in Plaintiffs’ Contrary Evidence in the Record

Contrary to plaintiffs’ unsupported claims, therefore, the record decisively establishes

145, 150 (1996).

Second, the bulk of plaintiffs’ attacks on Ms. O’Donnell’s competence to testify as a

recordkeeping guidelines and directives, is clearly appropriate for judicial review.”).

claims against each defendant must be dismissed.

As the Supreme Court explained in Lujan v. Defenders of Wildlife:

When . . . a plaintiff’s asserted injury arises from the government’s allegedly

even if the State no longer adhered to them.”).

or other official or ceremonial duties. Accordingly, summary judgment should be granted on

to dismiss. See Defs.’ SMF ¶¶ 2-5.

(“This paragraph consists of fragments and characterizations of declarations and deposition

See, e.g., Defs.’ Mot. at 34.

defendants’ motion to dismiss.

Respectfully submitted this 31st day of December, 2008.

JOHN R. TYLER (D.C. Bar No. 297713)

/s/ Helen H. Hong