Case 1:08-cv-01548-CKK Document 9 Filed 09/16/2008 Page 1 of 19

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’ OPPOSITION TO PLAINTIFFS’

MOTION FOR A PRELIMINARY INJUNCTION

INTRODUCTION

The Vice President and the Office of Vice President (“OVP”) have been carrying out

since January 20, 2001 – and intend to continue to carry out – their obligations under the

Presidential Records Act with respect to documentary materials that relate to or have an effect

upon the Vice President’s constitutional, statutory or other official and ceremonial duties, both

executive-related and legislative-related duties. As a result, the Vice President and the Office of

Vice President intend to deposit with the Archivist by January 20, 2009, both executive-related

and legislative-related vice presidential records within their possession, custody or control. See

Decl. of Claire M. O’Donnell, Assistant to the Vice President and Deputy Chief of Staff ¶¶ 5-7

(attached as Exhibit 1) (“O’Donnell Decl.”). Plaintiffs nevertheless press this Court to exercise

its extraordinary equity powers to direct the Office of Vice President to carry out the law it is

already carrying out. As the declaration of Ms. O’Donnell makes clear, the Office of Vice

President applies the vice presidential records law, 44 U.S.C. § 2207, to all records – executive-
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related and legislative-related – at issue in this litigation. See O’Donnell Decl. ¶¶ 6, 7; see also

Decl. of Nancy Kegan Smith ¶¶ 5, 6 (“Smith Decl.”) (attached as Exhibit 2).

Plaintiffs have failed to demonstrate that they have suffered any harm that suffices to

make this civil action a constitutional “case or controversy” that this Court can adjudicate.

Injunctive relief is not proper to order a government official to carry out properly a law the

official is already carrying out properly. Federal courts exist to decide cases – not to provide

general supervision over government officials. See, e.g., CREW v. United States Dep’t of

Homeland Security, No. 06-1912, Or. (D.D.C. March 14, 2007) (Penn, J.) (attached as Ex. 3)

(denying as moot motion for a temporary restraining order requesting preservation of records

because defendants had provided a declaration containing assurances that it was preserving

relevant records). Because defendants have provided evidence through the declarations that

plaintiffs can incur no injury under their amended complaint, plaintiffs cannot establish the

touchstone required for any interim injunctive relief: irreparable harm. That absence of harm is

sufficient by itself to deny plaintiffs’ requested relief here. See, e.g., Wisc. Gas Co. v. Fed.

Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir.1985) (requiring evidence of imminent

irreparable harm and rejecting bare allegations for injunctive relief, in that case a stay of an

order).

This lawsuit, therefore, is premised solely on plaintiffs’ manufactured, make-believe

narrative, unsupported by submission of any sworn declarations or affidavits, that the Vice

President will not carry out 44 U.S.C. § 2207 for executive-related and legislative-related vice

presidential records. That account is just not true. Contrary to plaintiffs’ speculative claim of

“wholesale destruction or alienation of vice presidential records,” Pls.’ Mot. at 2, since the

beginning of the administration in 2001, the Office of Vice President has been implementing,

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and intends to continue to implement, section 2207 for the Vice President’s executive-related and

legislative-related vice presidential records. See O’Donnell Decl. ¶¶ 6-7; see also Smith Decl. ¶

5. Indeed, the OVP has not relied upon Executive Order 13,233 or any guidelines issued by the

other defendants, to exclude any vice presidential records from the requirements of section 2207.

See O’Donnell Decl. ¶¶ 6-7. Not even a potential for harm exists to justify injunctive relief.1

Granting plaintiffs’ request would therefore waste court resources in the superfluous task

of reiterating obligations already undertaken under the law by the Vice President and the OVP,

and which have been confirmed in writing through the attached declarations. Enmeshing the

Court in determining whether it should enter injunctive relief, that duplicates commitments

imposed by law and avowed to in a declaration, would waste judicial resources and is

inconsistent with the presumption that government officials follow the law. An injunctive order,

particularly when there are assurances provided through a declaration as here, is simply

unnecessary and unwarranted under the law. Cf. Am-Pro Protective Agency, Inc. v. United

States, 281 F.3d 1234, 1239 (Fed. Cir. 2002) (“The presumption that government officials act in

good faith is nothing new to our jurisprudence.”); Citizens to Preserve Overton Park, 401 U.S.

402, 415 (1971) (presumption of regularity for agency action); Dunlop v. Bachowski, 421 U.S.

560, 575-76 (1975) (“We prefer therefore at this time to assume that the Secretary would proceed

1
Plaintiffs also appear to suggest that some order is appropriate now to account for records
preservation if there is ongoing litigation when there is a transition of administrations on
January 20, 2009. As this Court held in analogous circumstances, however, it is premature to
issue emergency injunctive relief for that future contingency now, when it is wholly speculative
that litigation will be ongoing at all or that plaintiffs would incur any harm at that time. See
CREW v. OA, Civ. No. 07-964, Mem. Op. [60] at 6 (D.D.C. July 8, 2008) (“As such, the Court
concludes that it is premature to consider the consequences that may result from the transition
between administrations that is still over [four] months away, and to attempt to balance, at this
time, the four factors relevant to CREW’s request for [injunctive relief] based on the potential
future harms the parties raise.”).

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appropriately without the coercion of a court order when finally advised by the courts that his

decision was in law arbitrary and capricious.”). At bottom, the appropriate use of judicial

resources is ill-served by the injunction plaintiffs request now, especially when plaintiffs’ claims

of harm rest on entirely incorrect conjecture that the Office of Vice President has deemed the

majority of the Vice President’s records to fall outside the scope of section 2207.

As the Supreme Court has made clear, “there is a presumption of legitimacy accorded to

the Government’s official conduct” – in this civil action, the conduct of the Vice President and

other defendants – and “clear evidence is usually required to displace it.” Nat’l Archives and

Records Admin. v. Favish, 541 U.S. 157, 174 (2004), rehearing denied 541 U.S. 1057 (2004);

United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (“The

presumption of regularity supports the official acts of public officers and, in the absence of clear

evidence to the contrary, courts presume that they have properly discharged their official

duties”). The plaintiffs have not submitted “clear evidence to the contrary” – nor, indeed, any

evidence – that would displace the presumption of legitimacy accorded to the Vice President’s

conduct. An unverified complaint is not evidence, VFB LLC v. Campbell Soup Co., 482 F. 3d

624, 636 (3d Cir. 2007), and arguments in legal briefs are not evidence. Duha v. Agrium, Inc.,

448 F. 3d 867, 879 (6th Cir. 2006). Accordingly, the presumption of regularity of the Vice

President’s conduct prevails in this civil action and plaintiffs’ motion for a preliminary

injunction, unsupported by clear evidence contrary to the presumption, must be denied.

Finally, even though the above factors are sufficient to preclude relief, plaintiffs cannot

establish a substantial likelihood of success on the merits of their claims. Without addressing in

depth the reasons those claims lack merit, it is evident, at a minimum, that plaintiffs lack

standing to pursue them because they cannot establish the constitutional requisite of immediate

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or impending injury-in-fact. See, e.g., CREW v. United States Dep’t of Homeland Security, 527

F. Supp. 2d 101, 106 (D.D.C. 2007) (dismissing CREW’s challenge to the DHS’s Federal

Records Act compliance); CREW v. Dep’t of Educ., 538 F. Supp. 2d 24, 31 (D.D.C. 2008)

(CREW’s alleged injury too speculative to confer Article III standing); Am. Historical Ass’n v.

Nat’l Archives & Records Admin., 310 F. Supp. 2d 216, 228 (D.D.C. 2004) (denying standing

for lack of concrete injury despite “significant likelihood that Plaintiffs will again seek access to

presidential records”), revised in part on other grounds 516 F. Supp. 2d 90 (D.D.C. 2007).

Similarly, because the Office of the Vice President is handling the vice presidential records of

the vice presidency of Richard B. Cheney in accordance with section 2207, and intends to

transfer such records to the Archivist for his custody, control and preservation, plaintiffs lack any

actual injury or claims presenting a case or controversy. Cf. Los Angeles Cty. v. Davis, 440 U.S.

625, 631 (1979). In addition to the lack of constitutional basis for standing to sue, the plaintiffs

cannot demonstrate a substantial likelihood of success on the merits given the lack of a statutory

basis for their civil action. The plaintiffs provide in their Amended Complaint that they file this

civil action under the Administrative Procedure Act, the Presidential Records Act and the

Declaratory Judgment Act. Yet, none of the three Acts provides a basis for judicial review. And

no mandamus relief is available because there is no “clear and indisputable right to relief”

required to obtain the “drastic” relief of a writ of mandamus. In re Cheney, 406 F.3d 723, 729

(D.C. Cir. 2005).

At base, plaintiffs’ requested relief is not the type of extraordinary, narrow relief

permitted under Federal Rule of Civil Procedure 65, particularly in light of the assurances

provided in the declaration and given the entirely speculative – and incorrect – bases for

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plaintiffs’ claims, and given the plaintiffs lack of constitutional standing or any statutory basis

for their civil action. Plaintiffs’ motion should be denied in its entirety.

BACKGROUND

I. The Presidential Records Act of 1978

Sections 2201 through 2207 of title 44 of the United States Code, commonly called the

Presidential Records Act of 1978 or PRA, sets forth a scheme for the preservation and disclosure

of Presidential records. Section 2207 provides that “Vice-Presidential records shall be subject to

the provisions” of the PRA “in the same manner as Presidential records,”2 and that “the duties

and responsibilities of the Vice President, with respect to Vice-Presidential records, shall be the

same as the duties and responsibilities of the President under [the PRA] with respect to

Presidential records.” Id.

The Vice President is thereby directed with respect to vice presidential records, to the

same extent the President is directed with respect to presidential records, to take “all such steps

as may be 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 documented and that such records are maintained . . . .” 44 U.S.C. §§ 2203(a), 2207;

see also 36 C.F.R. § 1270.14(d) (defining of vice presidential records). At the conclusion of the

Vice President’s term of office, the Archivist assumes responsibility for the custody, control, and

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preservation of, and access to, the vice presidential records of that Vice President. 44 U.S.C.

§ 2203(f)(1). The United States reserves and retains complete ownership, possession and control

of vice presidential records. 44 U.S.C. § 2202.

Vice Presidential records assumed by the Archivist at the end of the Vice President’s

term may be available to the public pursuant to Freedom of Information Act (“FOIA”) requests,

but only not later than five years after legal custody of the records is transferred to the Archivist

at the end of a term and subject to certain restrictions from disclosure. 44 U.S.C. §§ 2204(a),

2204(b)(2)(A). Thus, for all practical purposes, vice presidential records of the vice presidency

of Richard B. Cheney will not be available for FOIA processing until January 20, 2014.

II. The Office of the Vice President and Compliance with the Presidential Records Act

The vice presidency of Richard B. Cheney commenced at noon on January 20, 2001 and

will conclude, absent unforeseen circumstances, at noon on January 20, 2009. See O’Donnell

Decl. ¶ 4. The Vice President performs functions as President of the Senate under the

Constitution, and, as recognized by 3 U.S.C. § 106, functions specially assigned to the Vice

President by the President in the discharge of executive duties and responsibilities. Id. ¶ 3. The

personnel employed by, or assigned or detailed to, the Vice President consist of employees paid

from the Vice President’s legislative appropriations, employees paid from the Vice President’s

executive appropriations, and employees assigned or detailed to the Vice President by

2
Executive Order 13,233 provides that the “Presidential Records Act applies to the executive
records of the Vice President.” E.O. 13,233 § 11 (Nov. 1, 2001). It should be no surprise that an
Executive Order addresses only those records pertaining to functions specially assigned to the
Vice President by the President in the discharge of executive duties and responsibilities.
Plaintiffs are therefore wrong to claim that the President “limited the scope of the PRA to the
‘executive records of the Vice President’ to exclude from its reach the vast majority of records
that the Vice President creates or receives, on the theory that the Vice President is acting in a
non-executive branch capacity.” Pls.’ Mot. at 3. E.O. 13,233 does not purport to address the

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departments and agencies. Id. There are currently 87 employees who, along with the Vice

President, comprise the Office of the Vice President. Id.

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,

employees within the Office of the Vice President and the Vice President have, since January 20,

2001, created or received records with respect to both the Vice President’s functions as President

of the Senate (“legislative-related records”) and the functions of the Vice President specially

assigned to the Vice President by the President in the discharge of his executive duties and

responsibilities (“executive-related records”). Id. ¶ 5. As a practical matter, most of the vice

presidential records of the vice presidency of Richard B. Cheney have related to the executive-

related functions, rather than his legislative-related functions. Id. And the Vice President and

OVP have been carrying out – and intend to continue to carry out – section 2207 with respect to

vice presidential records until the conclusion of the vice presidency of Richard B. Cheney, when

the Archivist assumes custody, control, and obligation to preserve the records. Id. ¶ 6.

In addition, neither the Vice President nor the OVP have relied upon Executive Order

13,233 or any guidelines issued by the other defendants to exclude any vice presidential records

from the requirements of section 2207. See O’Donnell Decl. ¶ 7. Specifically, neither the Vice

President nor the OVP have excluded from their obligations under section 2207 any vice

presidential records that relate to the constitutional, statutory, or other official or ceremonial

duties of the Vice President as the President of the Senate. Id. As a result, the Vice President

and the OVP have carried out – and intend to continue to carry out – section 2207 with respect to

vice presidential records, whether executive-related or legislative-related. Id. ¶¶ 6, 7. Indeed,

Vice President’s functions as President of the Senate under the Constitution, or to limit the

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the OVP intends to deposit with the Archivist the vice presidential records of the vice presidency

of Richard B. Cheney within its possession, custody or control – including those that relate to the

constitutional, statutory or other official or ceremonial duties of the Vice President as President

of the Senate – by the conclusion of the vice presidency of Richard B. Cheney. Id. ¶ 7.

ARGUMENT

A request for emergency injunctive relief is an extraordinary remedy, and the power to

issue such an injunction “should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168,

1173 (D.C. Cir. 1969) (quotation marks omitted). For a plaintiff to prevail in its motion for a

preliminary injunction, it “must demonstrate: 1) a substantial likelihood of success on the merits,

2) that it would suffer irreparable injury if the injunction is not granted, 3) that an injunction

would not substantially injure other interested parties, and 4) that the public interest would be

furthered by the injunction.” CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738,

746 (D.C. Cir. 1995). The plaintiff must satisfy each of these four factors separately, and the

court must further find that these four factors together justify the drastic intervention of a

preliminary injunction. See CityFed Fin. Corp., 58 F.3d at 747; Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 2006). Nonetheless, while courts may

balance weakness in one or more prongs against strong showings in others, CityFed Financial

Corp., 58 F.3d at 747, two prongs of the familiar four-part inquiry – the likelihood of success on

the merits and irreparable harm – must be established. See District 50, United Mine Workers of

Am. v. International Union, United Mine Workers of Am., 412 F.2d 165, 167 (D.C. Cir. 1969).

application of 44 U.S.C. § 2207.

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I. Plaintiffs Cannot Establish Imminent, Certain, and Irreparable Injury

The D.C. Circuit requires reversal of orders granting preliminary injunctions where “the

record does not show with any clarity” that irreparable harm will result. See District 50, 412

F.R.D. at 167 (reversing grant of preliminary injunction for inadequate showing of irreparable

injury). “[I]rreparable harm to the moving party is ‘the basis of injunctive relief in the federal

courts,’” Almurbati v. Bush, 366 F. Supp. 2d 72, 77-78 (D.D.C. 2005), citing CityFed Financial

Corp., 58 F.3d at 747 (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974)), and the absence of

irreparable injury, alone, is adequate to deny preliminary relief. See Wisc. Gas Co., 758 F.2d at

674; CityFed Fin. Corp., 58 F.3d 738, 747. “To obtain injunctive relief, the petitioners must

show that the threatened injury is not merely ‘remote and speculative’.” Almurbati, 366 F. Supp.

2d 72, 78, quoting Milk Indus. Found. v. Glickman, 949 F. Supp. 882, 897 (D.D.C. 1996).

Proving irreparable injury is a considerable burden, requiring proof that the movant’s injury is

“certain, great and actual – not theoretical – and imminent, creating a clear and present need for

extraordinary equitable relief to prevent harm.” Wisc. Gas Co., 758 F.2d at 674 (emphases

added). Indeed, harm must be of “such imminence that there is a ‘clear and present need’ for

equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches, 454 F.3d at

297. And bare allegations are insufficient to establish such clear and present need for court

intervention. See id.; see also Roth v. Rufus, 2003 WL 25152300, *1 (D.D.C. June 2, 2003)

(same).

Plaintiffs fall far short of their burden to establish that certain, great, actual and imminent

harm will result if the Court denies the “extraordinary” and “unusual” emergency injunctive

relief plaintiff seeks. Indeed, plaintiffs have not established through proof that they will incur

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any harm at all if relief is not granted.3 Relying only on the erroneous allegations in their

Amended Complaint that the Office of Vice President is not preserving records pursuant to the

PRA, plaintiffs offer only rank speculation to claim that “[a]bsent an injunction, plaintiffs and

the public will suffer irreparable harm, specifically the risk that the only copies of valuable

historical records will not be preserved.” Pls.’ Mot. at 3.

Plaintiffs are flat-out wrong, however, on at least three independent grounds: first, since

January 20, 2001, the Office of Vice President has implemented 44 U.S.C. § 2207 for vice

presidential records relating to both the Vice President’s legislative-related functions and his

executive-related functions; second, the Office of Vice President intends to continue to do so

until the conclusion of the vice presidency of Richard B. Cheney; and third, plaintiffs adduce no

evidence to prove that defendants will not abide by their obligations under section 2207 to

preserve vice presidential records at issue in this suit. Plaintiffs’ incorrect speculation to the

contrary cannot justify its requested relief. See Wisc. Gas Co., 758 F.2d at 674 (“Bare

allegations of what is likely to occur are of no value since the court must decide whether the

harm will in fact occur.”) (emphasis added); see also Nichols v. Agency for Int’l Dev., 18 F.

Supp. 2d 1, 5 (D.D.C. 1998) (“To exercise its equitable discretion appropriately, the Court must

rely on more than just the Plaintiff’s conclusory beliefs.”).

3
Indeed, plaintiffs contend that the Office of Vice President’s alleged PRA violations date back
as far as November 2001, and as late as July 2008 raised the allegations with NARA and the
OVP. See Am. Compl. ¶¶ 27, 45, 46. Plaintiffs come only now, seven years later, advancing
claims of “immediate” and “irreparable harms.” At a minimum, plaintiffs’ delay in filing suit or
seeking injunctive relief belies its claims of immediate, irreparable harm. See, e.g., Scott-
Blanton v. Universal City Studios Prods., LLP, 495 F. Supp. 2d 74, 80 (D.D.C. 2007) (denying
motion for temporary restraining order because plaintiff’s 14-month delay between knowledge of
putative harm and request for injunctive relief belied claims of irreparable harm) (citing
Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (stating that “[d]elay in seeking
enforcement . . . tends to indicate at least a reduced need for such drastic, speedy action”)).

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The absence of any evidence of irreparable harm is underscored when juxtaposed against

the assurances that the Office of Vice President has provided through the Declaration of the

Assistant to the Vice President and Deputy Chief of Staff, Claire M. O’Donnell. Although

regularity in an agency’s or government official’s dealings is typically presumed absent contrary

evidence, and it should be presumed that defendants will abide by their legal obligations, see

Citizens to Preserve Overton Park, 401 U.S. at 415, the Court has been provided with

significantly more – a sworn declaration concerning compliance with section 2207 with respect

to vice presidential records (both executive-related and legislative-related). See O’Donnell Decl.

¶¶ 6, 7; see also Smith Decl. ¶ 6; Fed. Trade Comm’n v. Invention Submission Corp., 965 F.2d

1086, 1091 (D.C. Cir. 1992) (“[A]gencies are entitled to a presumption of administrative

regularity and good faith, . . . and with no indication that the [agency] will act cavalierly or in

bad faith, its assertions . . . should be accepted at face value.”). That specific and express

commitment is more than sufficient to resist emergency relief, and indeed, moots plaintiffs’

request for relief. See CREW v. United States Dep’t of Homeland Security, No. 06-1912, Or.

(D.D.C. March 14, 2007) (Penn, J.) (attached as Ex. 3). For that reason, this case differs in at

least one significant respect from CREW v. Executive Office of the President, Civil No. 07-1707

(D.D.C.) upon which plaintiffs heavily rely. Pls.’ Mot. at 21-22. Although unnecessary in light

of the presumption that defendants will also fulfill their litigation hold obligations, a sworn

declaration has been submitted to this Court vitiating the basis for plaintiffs’ request.

Courts have denied preservation orders in analogous circumstances, even without the

submission of declarations. In Hester v. Bayer Corporation, for example, the court vacated a

preservation order imposed in state court prior to removal to federal court because the plaintiff

there “provided the state court with no evidence suggesting the possibility that evidence was at

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risk; the one page request for the preservation order was based entirely upon ‘information and

belief.’” 206 F.R.D. 683, 686 (M.D. Ala. 2001). The court explained that:

Whenever a lawsuit is filed, the defendant is automatically required to take all

appropriate steps to preserve any and all information which might be relevant to
that litigation. See Fed. R. Civ. P. 26. To supplement every complaint with an
order requiring compliance with the Rules of Civil Procedure would be a
superfluous and wasteful task, and would likely create no more incentive upon the
parties than already exists. The possibility that a document preservation order
might induce a cavalier defendant to elect the moral high road, however, . . .

was inadequate to justify entry of an order absent “some evidence . . . to justify such an extreme

remedy.” Id. at 685, 686. The court used similar reasoning in Schnall v. Annuity & Life Re

(Holdings) Ltd., XL, in denying a preservation order given extant statutory preservation duties,

and defendants’ affirmative statements that they were fully aware of their statutory obligations

and sanctions for failure to comply. No. 302-2133, 2004 WL 51117, *2 (D. Conn. Jan. 2, 2004)

(citing also for same proposition In re Tyco Int’l, Ltd. Sec. Litig., 2000 WL 33654141, at *2

(D.N.H. 2000)). The logic of such cases applies with equal (if not greater) force here. In any

event, there are express assurances in this case that OVP implements section 2207 with respect to

vice presidential records – including legislative records. Nothing more can be provided in

response to plaintiffs’ motion.

Plaintiffs have simply failed to establish imminent, irreparable, and certain harm. For

that reason, by itself, their motion for an extraordinary emergency injunction to preserve any

records should be denied. See CityFed Fin. Corp., 58 F.3d at 747.

II. The Public Interest Would Be Ill-Served By the Issuance of Injunctive Relief and An
Order Would Impose an Undue Burden on Defendants

The public’s interest in appropriate, and non-wasteful, use of judicial resources would be

harmed by the issuance of a preliminary injunction order here. As described above, “[t]o

supplement every complaint with an order requiring compliance with the Rules of Civil

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Procedure would be a superfluous and wasteful task, and would likely create no more incentive

upon the parties than already exists.” Hester, 206 F.R.D. at 686. Such disregard for extant

statutory obligations would demote the significance of the independent statutory obligations in

favor of expensive and time-consuming court-ordered preservation responsibilities. An

injunctive order, particularly when evidence has been provided that obviates any need for an

order, is simply unnecessary and would deprive those obligations of independent significance.

The public’s interest in ensuring that interim injunctive relief is not abused would be

harmed by the issuance of an injunction here as well. Allowing a party to obtain emergency

relief based on allegations alone – without a hint of any real evidence – would greatly expand the

possibility of Rule 65 abuse. Wisc. Gas Co., 758 F.2d at 756 (“The fact that petitioners have not

attempted to provide any substantiation is a clear abuse of this court’s time and resources.”).

This is particularly so where, as here, it is clear that plaintiffs’ allegations are wholly inaccurate

and based on misunderstandings of plaintiffs’ own making. Conversely, plaintiffs would not be

harmed by the absence of any injunction because (1) the Office of Vice President is following

section 2207 with respect to vice presidential records, both executive-related and legislative-

related; (2) the Office of Vice President will deposit those records with the Archivist at the

conclusion of the vice presidency of Richard B. Cheney and the Archivist will assume

responsibility for the custody, control, and preservation of the vice presidential records; and (3) a

declaration has been submitted confirming compliance with those obligations. See O’Donnell

Decl. ¶¶ 6, 7.

Defendants, for the same reason, would be burdened by the issuance of an injunction.

Creating precedent for the unsupported issuance of a preservation order would subject countless

government agencies or officials to prophylactic motions at the outset of cases to reiterate legal

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burdens based on allegation alone. Allowing an injunction to issue without supporting evidence

would harm defendants’ institutional interests, and run afoul of the well-established presumption

that government officials and agencies act in good faith and according to the dictates of law, no

matter how inflammatory the mere allegation. See Am-Pro Protective Agency, 281 F.3d at 1239

(“The presumption that government officials act in good faith is nothing new to our

jurisprudence.”).

Plaintiffs suggest that an order may be proper because it “will require nothing more of the

defendants than what the law already mandates.” Pls.’ Mot. at 22. Declared compliance with

legal mandates, however, cuts exactly the other way, by both negating plaintiffs’ allegations of

harm and by foreclosing any need for court intervention. See O’Donnell Decl. ¶¶ 6-7; see also

Smith Decl. ¶¶ 5-6. The stringent test for injunctive relief, of course, is not “why not enter one,”

but instead requires a “convincing” and “persuasive demonstration of a need for injunctive

relief.” District 50, 412 F.2d at 167.

This is particularly true given that plaintiffs seek injunctive relief beyond even the

allegations of harm provided in their motion and Amended Complaint, running afoul of the well-

established rule that “[a]n injunction should be narrowly tailored to remedy the specific harm

shown.” Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 108 (D.C. Cir. 1976).

Of course, the scope of the allegations cannot determine the breadth of the injunction. As the

evidence submitted to this Court establishes, no injunction is appropriate. Nonetheless, plaintiffs

purport to seek relief beyond the allegations of the amended complaint. For example, plaintiffs’

requested order would have the effect of imposing preservation obligations over vice presidential

records relating to or having an effect upon the Vice President’s executive-related functions,

even though the Amended Complaint contains no allegation that defendants have been

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maintaining those records in a manner inconsistent with section 2207. Given that plaintiffs’

(incorrect) central complaint is that legislative-related records are not being treated as covered

by the PRA, they cannot now seek an order about executive-related records that are being

preserved under the PRA. Plaintiffs therefore cannot, and have not, made the “greater . . .

necessary showing” of harm required for “the greater . . . scope of relief demanded.” Disability

Rights Council of Greater Washington v. WMATA, 234 F.R.D. 4, 7 (D.D.C. 2006). Indeed, to

purport to reinforce compliance with the PRA over those records would run afoul of this

Circuit’s instruction in Armstrong v. Bush that such judicial review over PRA compliance is

prohibited. 924 F.2d 282, 291 (D.C. Cir. 1991) (“[A]llowing judicial review of the President’s

general compliance with the PRA at the behest of private litigants would substantially upset

Congress’ carefully crafted balance of presidential control over records creation, management,

and disposal . . . .”). And as to legislative-related records, the OVP declaration makes clear that

they are being treated as vice presidential records under the PRA, and thus OVP is properly

carrying out section 2207. See also Smith Decl. ¶¶ 5-6.

III. Plaintiffs Cannot Establish Likelihood of Success on the Merits of their Claims

The first three factors addressed above unambiguously establish that plaintiffs have no

right to preliminary injunctive relief. See, e.g., Judicial Watch, Inc. v. United States Dep’t of

Homeland Security, No. 07-506, 2007 WL 2791371, *2-3 (D.D.C. Sept. 24, 2007) (rejecting

motion for preliminary injunction because plaintiff had not established irreparable harm,

defendant would be burdened, and the public interest would not be served, and not analyzing the

last prong regarding likelihood of success on the merits). Thus, there is no reason to dwell long

on the merits prong for awarding injunctive relief.

16
 Case 1:08-cv-01548-CKK Document 9 Filed 09/16/2008 Page 17 of 19

Nonetheless, by way of example,4 it is quite clear that no “case or controversy” exists

here over which the Court may appropriately exercise jurisdiction. Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 102 (1998). First, despite plaintiffs’ make-believe contention that the

Office of Vice President and Vice President have not followed section 2207 with respect to vice

presidential records, they have. See O’Donnell Decl. ¶¶ 5-7. Plaintiffs therefore lack any actual

injury to invoke this Court’s jurisdiction, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992), and have no “legally cognizable interest in the final determination of the underlying

questions of fact and law.” Davis, 440 U.S. at 632. The OVP has been carrying out – and

intends to continue to carry out – section 2207 with respect to vice presidential records, both

executive-related and legislative-related.

Even if that were not the case, plaintiffs lack any “certainly impending harm” to have

standing. Each of the seven plaintiffs claims only most generally that it has, at some point in the

past, requested presidential and vice presidential records or that it will again seek records in the

future. Putting aside that OVP has implemented section 2207 with respect to the vice

presidential records, and that those records will be available at a point in the future specified

under the PRA, plaintiffs have not set forth a future intent to seek vice presidential records

consistent with Article III standing limits. As this Court has found, such future FOIA requests

do not amount to “sufficiently imminent” harm, as opposed to “conjectural and hypothetical”

harm. Am. Historical Ass’n, 310 F. Supp. 2d at 228; CREW v. Dep’t Homeland Security, 527 F.

Supp. 2d at 106.

In addition to the lack of constitutional basis for standing to sue, the plaintiffs cannot

demonstrate a substantial likelihood of success on the merits given the lack of a statutory basis

4
Defendants certainly do not intend these examples to be an exhaustive analysis of

17
 Case 1:08-cv-01548-CKK Document 9 Filed 09/16/2008 Page 18 of 19

for their civil action. The plaintiffs provide in their Amended Complaint that they file this civil

action under the Administrative Procedure Act, the Presidential Records Act and the Declaratory

Judgment Act. Yet, none of the three Acts provides a basis for judicial review.

For example, the OVP is not an “agency” for purposes of the Administrative Procedure

Act, 5 U.S.C. § 702, given the need to exclude the Vice President – absent an express statement

by Congress that includes the Vice President, which the Act does not contain – due to his unique

constitutional position. See Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (use of

term “agency” in Administrative Procedure Act construed not to include President) (“Out of

respect for the separation of powers and the unique constitutional position of the President, we

find that textual silence is not enough to subject the President to the provisions of the APA. We

would require an express statement by Congress before assuming it intended the President's

performance of his statutory duties to be reviewed for abuse of discretion.”). Further, the vice

presidential records provision of the Presidential Records Act, 44 U.S.C. § 2207, does not

provide a private right of action for its enforcement, and judicial review of the Vice President’s

compliance with section 2207 would upset the intricate statutory scheme Congress carefully

drafted. Armstrong v. Bush, 924 F. 2d 282, 290 (D.C. Cir. 1991). Also, the availability of relief

under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, presupposes the existence of a

judicially remediable right, Schilling v. Rogers, 363 U.S. 666, 677 (1960), which the plaintiffs

do not have.

Lastly, plaintiffs state in their Amended Complaint, ¶ 2, that the Federal mandamus

statute, 28 U.S.C. § 1361, provides jurisdiction for the civil action, but it is plain that section

2207 of title 44 does not impose upon the Vice President or the OVP or any defendants any duty

plaintiffs’ jurisdictional and merits bars to suit.

18
 Case 1:08-cv-01548-CKK Document 9 Filed 09/16/2008 Page 19 of 19

owed to the plaintiffs and that plaintiffs lack the “clear and indisputable right to relief” required

to obtain the “drastic” relief of a writ of mandamus. In re Cheney, 406 F. 3d 723, 729 (D.C. Cir.

2005).

* * *

Because the conduct of the Vice President and his office in implementing section 2207 of

title 44 of the United States Code are presumed regular, and there is no evidence to the contrary

in this case, and the plaintiffs lack constitutional standing to sue in this case, and the plaintiffs

have not substantial likelihood of prevailing on the merits due to the lack of a right of action

under the statutes plaintiffs cite as the basis for their action, the Court should deny plaintiffs’

motion for a preliminary injunction.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for a preliminary injunction should be

denied.

Respectfully submitted this 16th day of September, 2008.

GREGORY G. KATSAS
Assistant Attorney General

JEFFREY A. TAYLOR
United States Attorney

/s/ Helen H. Hong____________________

JOHN R. TYLER (DC Bar No. 297713)
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

19
 Case 1:08-cv-01548-CKK Document 9-2 Filed 09/16/2008 Page 1 of 1

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. )
__________________________________________)

[PROPOSED] ORDER DENYING PLAINTIFFS’

MOTION FOR PRELIMINARY INJUNCTION

Upon consideration of Plaintiffs’ Motion for a Preliminary Injunction, opposition

briefing, and the arguments made therein, it is hereby

ORDERED that Plaintiffs’ Motion for a Preliminary Injunction be, and hereby is,

DENIED.

Signed this ______ day of __________________, 2008.

___________________________________
JUDGE COLLEEN KOLLAR-KOTELLY
United States District Judge
Case 1:08-cv-01548-CKK Document 9-3 Filed 09/16/2008 Page 1 of 6

EXHIBIT 1
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Case 1:08-cv-01548-CKK Document 9-4 Filed 09/16/2008 Page 1 of 7

EXHIBIT 2
 Case 1:08-cv-01548-CKK Document 9-4 Filed 09/16/2008 Page 2 of 7

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 )
__________________________________________)

DECLARATION OF NANCY KEGAN SMITH

I, Nancy Kegan Smith, hereby declare:

1. I am the Director of the Presidential Materials Staff in the Office of Presidential

Libraries at the National Archives and Records Administration (NARA). My duties as Director

of the Presidential Materials Staff include directing the staff that provides courtesy storage for

the records and gifts of the incumbent President and Vice President; training new archival staff

of the Presidential Record Act libraries; providing oversight and guidance on Presidential access

issues; directing the declassification program for Presidential Library holdings; handling special

access requests for Presidential and Vice Presidential records; and coordinating the White House

part of Presidential moves.

2. I have been with NARA since August of 1973. Previously, I served as an

archivist at the Johnson Library, 1973-1989; Special Assistant to the head of Presidential
 Case 1:08-cv-01548-CKK Document 9-4 Filed 09/16/2008 Page 3 of 7

Libraries, 1989-1997; Access Officer for Presidential Holdings in NARA’s Office of General

Counsel, 1997-1998; and Director of the Presidential Materials Staff from September of 1998

until the present. I have over 30 years of experience in handling Presidential access issues and

FOIA requests, appeals and litigation on behalf of NARA. I am familiar with the allegations in

the present lawsuit, and make this declaration on the basis of my personal knowledge and of

information I have received in the performance of my official duties. If called upon to do so I

could testify competently as to the contents of this declaration.

3. Since 1981, NARA has offered and been providing “courtesy storage” for the Vice

Presidential records that the incumbent Vice President and his staff create or receive under the

Presidential Records Act (PRA), 44 U.S.C. § 2207, until the records transfer at the end of the

administration into the legal custody and control of the Archivist. Records on courtesy storage

with NARA are in the physical possession of NARA until legal custody transfers to the

Archivist, while the Vice President maintains legal custody over the records during his term(s).

While the records are on courtesy storage, the Presidential Materials Staff provides reference

service to the incumbent and returns the records back to the Vice President, if requested, on a

one hour turn-around time, 24 hours a day basis. The records, gifts, and historical materials on

courtesy storage are made available only to the incumbent Administration as requested for

reference. Boxes of textual records in courtesy storage remain sealed while in NARA’s physical

possession. No archival processing takes place and only those designated by the Office of the

Vice President are permitted to see the material. At the end of the Administration, all Vice

Presidential records are transferred into NARA’s legal custody under the PRA. NARA provides

courtesy storage throughout the course of the Administration, which assists with the presidential

2
 Case 1:08-cv-01548-CKK Document 9-4 Filed 09/16/2008 Page 4 of 7

transition process, as it reduces the volume of records that need to be transferred from the Office

of the Vice President during the final months of an administration.

4. NARA currently has legal custody over the Vice Presidential records from the vice

presidencies of Vice President George H. W. Bush, Vice President Dan Quayle, and Vice

President Albert Gore. At least two of these collections (those relating to the George H.W. Bush

and Albert Gore Vice Presidencies), also include records that were created or received by those

former Vice Presidents at their Vice Presidential Senate Offices. NARA’s position is to treat

these legislative records as Vice Presidential to be covered under the PRA, absent an express

indication from the former Vice President or his representative that such records are considered

to be “personal” in nature. We have not received any indication from those former Vice

Presidents that their legislative records should be considered by NARA to be “personal” in

nature and NARA accordingly treats them as PRA records.

5. Since 2001, NARA has routinely received records for courtesy storage from the

Office of Vice President for Vice President Richard B. Cheney. These records have consisted of

both textual Vice Presidential records from the incumbent Vice President, along with records in

other non-textual media. NARA intends to work closely with the Office of Vice President to

ensure that the remainder of the incumbent’s Vice Presidential records are moved into NARA’s

physical custody by January 20, 2009, on which date NARA will also assume legal custody of

these records as governed by the PRA.

6. NARA has been retaining, and will continue to retain and not dispose of, all Vice

Presidential records -- whether “executive” or “legislative” as plaintiffs describe in their

Amended Complaint -- that the Vice President or the Office of Vice President has physically

transferred or will transfer to NARA. Accordingly, except for any recall request, as described in

3
08118/2008 16’02 FAX , m ~005t005
Case 1:08-cv-01548-CKK Document 9-4 Filed 09/16/2008 Page 5 of 7

paragraph 3 of this declaration, Rom the Vice President for access to his records before

January 20, 2009 (because he alone maintains legal custody and control over his records until

3"anuary 20, 2009), all records at i~sue in the Amended Complaint in NARA’s physical
possession will be retained and not disposed,
7, At the beginning of the Bush-Cheney Administration, NARA recornm~ded, as

we have since 198 l wirh each prior Administration governed by the PRA, that the President and
Vice P~esident seek disposal authority under section 22o3(c) of the Presidential Records Act for

the vast amount of public mail (including mail received by fax and email), wlfich we call "bulk
mail," that they and their spouses receive on a daily basis. These records are described as:

"Certain categories of public mail to the Vice President, the spouse of the Vice President, and

their staffs including anonymous correspondence, correspondence with an incomplete address,

mail from prolific writers, and public opinion mail," and "Publications, brochures, clippings and

other types of en¢loswes in public mail, when there is no immediate or historical importance to

the mateflais." NAP.& has determined that these records in their ~tirety do not have sufficient

"administrative, his!orical, informational, or evidentiary value" (44 U.S.C. § 2203(¢)) to warrant

pma,nanem preservation under the PRA, Before the bul~ mail records are disposed of, NARA

reviews them to select and retain a smal! ’sample Of le~ers for use in the Presidential Library. A
copy of the September 21, 2001, Archivist of the United States’ ~tten view~ on this disposal

request from the Office of the Vice President under the PRA is attached at Tab A.
I declare under penalty of perjury that the foregoing is mac and correct,

NANCY I~GAN ~MITH

Date: September 16, 2008

Case 1:08-cv-01548-CKK Document 9-4 Filed 09/16/2008 Page 6 of 7

Tab A
09/11/2008 18:24 FAX ~003/003
Case 1:08-cv-01548-CKK Document 9-4 Filed 09/16/2008 Page 7 of 7

SEP 2 0 200t
Mr, David S. ~d ,d~nEton
Counsel to the Vice President
The White Houae
Washin~on, DC 20500

Dear Mr, Addington:

In accordance with the authority ~r~nted to me by ~e Presidential Records Act, S~on 2203(c) (2),
I approve of dispos~ of th~ ~o categories oftex~al Vice Pr~sidenti~ bulk mail d~c~b~ ~ your
letter of August 16, 2001, Those catego~s ~e:

(1) Certmin categories of public mail to the Vice President, the spouse of the Vice Presidem, and
their sta~s including anonymous correspondence, correspondence with an incomplete address, m~l
from prolific writers, and public opinion mail, Samples, when appropriate, will be retained,

(2) Publications, brochures, ¢lippin6s and other types of enclosures in public mail, when there is no
immediate or historical importance to the matm’ials,
As with the di~osal of lh’esidential bulk mail, I r~ommend that representatives of the National
Archives and Records Administration (NARA), in coordination wi~ the White House Offioe of
Records Management0 review thes~ matc’rials before disposal and rake samples when appropriate.
Thes~ samples willbe refaced perm~ently. NARA will inform you ifwo id~mtify groups of
materials that ~hould not be destroyed during sampling,
I do not’intend to take any ~ongressional action with regm’d to this request as provided for by Section
2203(e) of the Presidential Records Act,
I support your effort to continue the disposal of bulk marl, This practice has been very successful
since it began in 1982.

" .~.J, OHN W.,CARLIN

JOHN W, CA.P.LIN
Archivist of the United States

Official: N
Reading: N, INL, NLMS, NOC, NWIVI, NCON
N:BFidler:jw 09/20101
Doc nam~rCheneyBu.do~ file ~od¢:
Case 1:08-cv-01548-CKK Document 9-5 Filed 09/16/2008 Page 1 of 3

EXHIBIT 3
 Case 1:08-cv-01548-CKK
Case 1:06-cv-01912-RCL Document 9-5
Document 23 Filed
Filed 03/14/2007
09/16/2008 Page
Page 12 of
of 23

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 06-1912 (JGP)
)
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendant. )

Order

This matter is before the Court on Plaintiff’s Motion For A Temporary Restraining

Order [12]. On February 15, 2007, Plaintiff Citizens for Responsibility and Ethics in

Washington (“CREW”) filed a temporary restraining order seeking to require Defendants to

preserve all records potentially responsive to CREW’s Freedom of Information Act request, filed

on October 4, 2006, that are the subject of this action. In response to the motion for a temporary

restraining order, Defendants filed two declarations by Paul S. Morrissey, Deputy Assistant

Director of the United States Secret Service. The declarant explained that the Secret Service is

currently preserving all records that are potentially responsive to CREW’s FOIA request, and that

it will continue to do so for the remainder of this case. The declarant stated, in relevant part:

All components of the Office of Protective Operations that possess record sets
that may include records responsive to [CREW’s] FOIA request have been
directed to preserve, and to continue to preserve, such records, or copies of such
records, during the pendency of this litigation. Such components will continue
to be so directed. The Secret Service will not, during the pendency of this
litigation, transfer any potentially responsive records to any other entity,
including the White House Office of Records Management, without first creating
and retaining a copy of such record, or otherwise preserving the record.

-1-
 Case 1:08-cv-01548-CKK
Case 1:06-cv-01912-RCL Document 9-5
Document 23 Filed
Filed 03/14/2007
09/16/2008 Page
Page 23 of
of 23

See First Morrissey Decl. at ¶ 5. In a second declaration, the declarant reiterated the Defendants’

intention to preserve all records that are potentially responsive to CREW’s request, stating:

[T]he Secret Service is preserving, and will continue to preserve, types of records
that may include records responsive to this FOIA request. The Secret Service
will not, during the pendency of this litigation, transfer any potentially responsive
records to any other entity, including the White House Office of Records
Management (“WHORM”) or the Office of the Vice President (“OVP”), without
first creating and retaining a copy of such record, or otherwise preserving the
record.

See Second Morrissey Decl. ¶ 5. Based on the declarant’s representations, CREW concedes that

“defendants have finally offered sufficient assurances that the universe of records at issue is

being properly preserved pending the outcome of this litigation.” Plt.’s Reply Br. at 1. CREW

also concedes that “further consideration of [its] motion for a temporary restraining order [is]

unnecessary at this time.” Id. The Court therefore finds that CREW’s motion for a temporary

restraining order is moot.1 Accordingly, it is hereby

ORDERED that Plaintiff’s motion [12] is DENIED as MOOT.

SO ORDERED.

DATE: March 14, 2007 JOHN GARRETT PENN

United States District Judge

1
On February 16, 2007, the Court ordered the Defendants to give the Court and CREW
five days notice before altering, in any respect, their current document retention policy. This
directive remains in effect.

-2-