Armstrong v. Bush

139 F.R.D. 547, 24 Fed. R. Serv. 3d 1401, 1991 U.S. Dist. LEXIS 16748, 1991 WL 243612
CourtDistrict Court, District of Columbia
DecidedNovember 18, 1991
DocketCiv. A. No. 89-142 (CRR)
StatusPublished
Cited by11 cases

This text of 139 F.R.D. 547 (Armstrong v. Bush) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. Bush, 139 F.R.D. 547, 24 Fed. R. Serv. 3d 1401, 1991 U.S. Dist. LEXIS 16748, 1991 WL 243612 (D.D.C. 1991).

Opinion

OPINION

CHARLES R. RICHEY, District Judge.

Before the Court is a Motion for a Protective Order filed by the defendants in the above-captioned action.1 The defendants argue that many of the plaintiffs’ discovery requests have exceeded the current scope of this lawsuit in light of the remand by the Court of Appeals in this case. See Armstrong v. Bush, 924 F.2d 282 (D.C.Cir. 1991). Upon careful consideration of the Motion, supporting and opposing memoran-[549]*549da, supplemental memoranda filed by the parties, the arguments of counsel, and the entire record herein, the Court has concluded that the Motion shall be granted in part and denied in part, for the reasons set forth below.

7. Background

This case was originally filed on January 19,1989, the last day of the Reagan administration, by several individuals and organizations seeking to prohibit defendants from erasing certain material stored on the National Security Council’s (“NSC”) Professional Office (“PROFS”) computer system during the Reagan administration. Plaintiffs alleged that some of these materials were “records” within the meaning of the Presidential Records Act (“PRA”), 44 U.S.C. §§ 2201 et seq., and the Federal Records Act (“FRA”), 44 U.S.C. §§ 2101-2118, 2901-2910, 3101-3107, and 3301-3324, and therefore could not be erased without the approval of the Archivist of the United States. On the same day, the plaintiffs filed requests under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking copies of all information stored on the defendants’ PROFS computer systems, from the date the systems were installed until the end of the Reagan administration, a request the agency later denied in entirety. As a result of the issuance of a temporary restraining order, and a stipulation entered on January 31, 1989, defendants have preserved all of the computer tapes that are at issue.

Upon consideration of the defendants’ motion to dismiss or, in the alternative, for summary judgment, this Court held, in an opinion issued on September 15, 1989, that § 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, authorized judicial review of the President’s and NSC’s compliance with the PRA and the FRA and that there were unresolved factual issues regarding whether the appellants complied with the recordkeeping statutes. Therefore, the Court denied the defendants’ motion to dismiss or, in the alternative, for summary judgment. Armstrong v. Bush, 721 F.Supp. 343 (D.D.C.1989).

The court of appeals granted an interlocutory appeal, and affirmed in part, reversed in part, and remanded the case back to this Court for further proceedings. Armstrong v. Bush, 924 F.2d 282 (D.C.Cir. 1991). The D.C. Circuit held, inter alia, that the APA does not provide judicial review of the President’s compliance with the Presidential Records Act because the President is not an “agency” within the meaning of the APA and because the Presidential Records Act impliedly precludes judicial review of the President’s record creation and management decisions. Id. at 288-291. The Appeals Court also held that the APA provides judicial review over some aspects of the Federal Records Act. Judicial review under the APA is authorized to determine the adequacy of the NSC’s record-keeping guidelines and instructions pursuant to the FRA. Id. at 291-293. However, judicial review is not authorized to determine actual compliance with the guidelines, because the FRA specifies a method of action in such cases: the agency head and the Archivist must request that the Attorney General initiate action to preserve the documents. A private litigant may seek judicial review of the agency head’s or Archivist’s refusal to seek an enforcement action by the Attorney General in the event of noncompliance with the guidelines. Id. at 294-296.

Finally, the Court of Appeals affirmed the denial of the government’s motion for summary judgment because the record was not yet adequate to determine whether the NSC’s recordkeeping guidelines are arbitrary or capricious. The case was remanded for further development of the record on this issue. Id. at 296-297. The court stated that it was not clear whether the written documents on the record informing the NSC staff of their obligation to maintain hard copies of federal records on the PROFS computer system comprises the total guidance given to NSC staff regarding their recordkeeping responsibilities, or whether there is other, “informal, supplementary guidance” given:

For example, how did appellants respond to questions about whether particular documents or types of documents consti[550]*550tute records that must be maintained? Was any additional guidance provided in staff meetings in which recordkeeping responsibilities were discussed? Did appellants consistently advise their staff that particular types of documents—such as PROFS notes or calendars—are or are not records?

Id. at 296.

The Court stated that with responses to such questions, either through affidavits or testimony, the record should contain sufficient information for the district court to determine whether the NSC recordkeeping guidelines and directives satisfy the NSC’s obligations under the FRA, or whether the guidelines and directives permit the destruction of record material and therefore are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. 5 U.S.C. § 706(2)(A); 924 F.2d at 296. The Court also noted that the fact that some record material may have been destroyed does not compel a finding that the guidelines are inadequate. Rather, the inquiry is whether the guidelines adequately explain the factors that staff should consider in deciding whether documents and computer entries are records. Id. at 297, n. 14.

Upon remand, the plaintiffs filed a second amended complaint on April 19, 1991, and the Court issued a scheduling order to govern the remainder of the case. See Order filed May 3, 1991. In the second amended complaint, the plaintiffs allege that: (1) substantial amounts of the information on the preserved PROFS tapes constitute “agency records” subject to 'the FOIA, and that the defendants have improperly withheld those agency records which are not exempt from disclosure under the FOIA; (2) the guidelines issued by the Executive Office of the President (“EOP”) and the NSC are arbitrary and capricious in violation of the FRA because they authorize destruction of agency records; (3) certain general schedules, promulgated by the Archivist, which authorize the disposal of certain electronic records after the lapse of specified periods of time, are arbitrary and capricious because they authorize the disposal of agency records; and (4) the Archivist has violated his statutory duty to initiate action to stop improper destruction of agency records on the PROFS system.

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Bluebook (online)
139 F.R.D. 547, 24 Fed. R. Serv. 3d 1401, 1991 U.S. Dist. LEXIS 16748, 1991 WL 243612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-bush-dcd-1991.