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Judicial Watch • Jw v Nara Opp Mot Dismiss 02222011

Jw v Nara Opp Mot Dismiss 02222011

Jw v Nara Opp Mot Dismiss 02222011

Page 1: Jw v Nara Opp Mot Dismiss 02222011

Category:General

Number of Pages:14

Date Created:February 22, 2011

Date Uploaded to the Library:February 20, 2014

Tags:audiotapes, Branch, Commerce, ARMSTRONG, presidential, exhibit, complaint, Circuit, defendant, clinton, president, watch, plaintiff, records, judicial, states, united, court, EPA, IRS, ICE, CIA


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THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INC.,  
Plaintiff,  Civil Action No. 10-1834 (PLF)  
NATIONAL ARCHIVES AND  

RECORDS ADMINISTRATION 
Defendant. 
____________________________________) 

PLAINTIFFS OPPOSITION DEFENDANTS MOTION DISMISS; REQUEST FOR HEARING 
Plaintiff Judicial Watch, Inc., counsel, respectfully submits this memorandum law opposition Defendant National Archives and Records Administrations motion dismiss.  Moreover, pursuant LCvR 7(f), Plaintiff requests oral hearing Defendants Motion Dismiss. grounds therefor, Plaintiff states follows: 

MEMORANDUM LAW INTRODUCTION. 
During the course his presidency, President William Jefferson Clinton and Author/Historian Taylor Branch met seventy-nine separate occasions and created audiotapes about the Clinton presidency. Regardless the intended purpose the audiotapes, they recorded President Clinton conducting activities that related to, had effect upon, the carrying out his constitutional, statutory, other official ceremonial duties President. other words, the audiotapes capture President Clinton being President. 
Because the audiotapes capture President Clinton being President and not just the musings President Clinton about being President, the audiotapes constitute presidential records under the Presidential Records Act (PRA).  Therefore, when President Clintons term concluded January 20, 2001, the PRA required Defendant assume responsibility for the custody, control, and preservation of, and access to, the audiotapes. U.S.C.  2203(f)(1). Because the audiotapes are presidential records under the PRA, they must made available the public under the Freedom Information Act (FOIA).  Yet, when Plaintiff made FOIA request Defendant for the audiotapes, Defendant responded asserting that the audiotapes are not presidential records and therefore are not subject FOIA. 
II. FACTUAL BACKGROUND. The Audiotapes Are Presidential Records. 2009, Branch published The Clinton Tapes: Wrestling History with the President (The Clinton Tapes). The book was based Branchs personal recollections the seventy-nine separate occasions between January 20, 1993 and January 20, 2001 which and President Clinton met create audio recordings about the Clinton presidency.  Complaint   According Branch, these audiotapes preserved not only President Clinton=s thoughts and commentary contemporaneous events and issues was facing president, but, some instances, recorded actual events such presidential telephone conversations.  Id.  10; see generally, Exhibit attached Defendants Memorandum Support its Motion Dismiss (Defs Mem.). the entity that controls the day-to-day management the Oval Office, Oval Office Operations responsible for determining who gets access the president during official hours.  Complaint  11. The Clinton Tapes, Branch describes how Oval Office Operations had active role creating the audiotapes.  Complaint  11.  Specifically, Nancy Hernreich, director Oval Office Operations, set the meetings between President Clinton and Branch and was involved the mechanics the audio recordings.  Exhibit attached Defs Mem. She also discussed the content the audiotapes with Branch.  Id. Most relevant, according Branch, the audiotapes recorded President Clinton discussing 
issues related presidential appointments and policy decisions.  Complaint  11.  Such 
discussions included, but were not limited to:  President Clinton contemplating potential changes his cabinet, including whether fire CIA Director James Woolsey, Jr. and whether nominate Madeleine Albright for Secretary State; 
	 President Clinton=s thoughts and reasoning behind foreign-policy decisions such the United States= military involvement Haiti and the contemplated 
relaxation the United States= embargo Cuba; 

	 President Clinton=s side telephone conversations with foreign leaders, members the United States Senate, and cabinet secretaries;  
	 President Clinton speaking several members the United States Senate 
which President Clinton attempted persuade the Senators vote against 
specific amendment before the Senate; 

	 President Clinton=s side telephone conversation with Congressman William
 Natcher Kentucky which President Clinton explained his reasoning for 
entering into the North American Free Trade Agreement based technical 
forecasts that received during presidential briefings; and
 
	 President Clinton=s side telephone conversation with U.S. Secretary State Warren Christopher concerning diplomatic impasse over Bosnia. Id.; see also, Exhibit attached Defs Mem. 2-4. evident from these few examples, the audiotapes contain more than just musings President Clinton about being President.  The audiotapes capture President Clinton being President. 	Defendant Determined that the Audiotapes Are Not  
  Presidential Records. 

Based Branchs firsthand account the contents the audiotapes, Plaintiff sent FOIA request the Clinton Library and Presidential Museum (the Clinton Library) October 2010. Complaint  and 12. letter dated October 2010, Clinton Library Supervisory Archivist Dana Simmons responded Plaintiffs request, stating: 
[t]he items you have requested are not presidential records and therefore are not 
subject request under the PRA and FOIA.  Rather, the tapes are personal 
records, defined section 2201(3) the PRA.  Therefore, not consider 
this denial under the Freedom Information Act. Id.  13; Exhibit attached Defs Mem.  Supervisory Archivist Simmons also informed Plaintiff that could appeal her decision the Deputy Archivist the United States.  Plaintiff did so. Complaint  14; Exhibit attached Defs Mem.  (Plaintiff believes that the audiotapes are presidential records and therefore FOIA applies.  This letter respectfully appeals the determination Ms. Simmons.). response dated March 16, 2010, Deputy Archivist Adrienne Thomas affirmed Supervisory Archivist Simmons decision: the opinion that the audiotapes are personal records President 
Clinton defined the PRA. Accordingly, upholding the initial 
determination the Clinton Library.  Your administrative remedies are now 
exhausted, and you are free seek judicial review federal district court. Complaint  15; Exhibit attached Defs Mem.  Plaintiff subsequently initiated this action. 
III.	 ARGUMENT. 	Plaintiff Has Standing. evident, Plaintiff specifically challenges Defendants erroneous determination that the audiotapes are not presidential records. letter dated March 16, 2010, Defendant upheld its initial determination October 2009 that [t]he items [Plaintiff] requested are not presidential records and therefore are not subject request under the PRA and FOIA.  Exhibit attached Defs Mem.  Regardless what Defendant now attempts argue, Defendants decision that the audiotapes are not presidential records was final agency action. 
Plaintiff does not contest that there private right action under the PRA.  Defs Mem. 12.  Therefore, once Defendant erroneously determined that the audiotapes are not presidential records, Plaintiffs only course action was bring claim against Defendant under the Administrative Procedure Act (APA).  Judicial Watch, Inc. U.S. Dept Commerce, 2010 U.S. Dist. LEXIS 140225, *12 (D.D.C. Sept. 2010) ((The APA grants jurisdiction review final agency actions for which there other adequate remedy.) (citing U.S.C.  704)). Indeed, Defendant advised Plaintiff that we not consider this denial under the Freedom Information Act. Exhibit attached Defs Mem. Consequently, Plaintiff cannot challenge Defendants erroneous determination under the APA, Plaintiff has other adequate remedy law and would prevented from ever gaining access the records requested. 
Like the PRA, the Federal Advisory Committee Act (FACA) does not provide private right action. Judicial Watch, Inc., 2010 U.S. Dist. LEXIS 140225, **11-12. However, plaintiff may bring claim pursuant the APA for alleged violation FACA.  Id. **12
14. Judicial Watch, Inc. U.S. Dept Commerce, Judicial Watch sued the Department Commerce over alleged violations FACA.  The Department Commerce argued that Judicial Watch lacked standing because the Department Commerce claimed that FACA did not apply.  Although the district court agreed with the Department Commerce, the U.S. Court Appeals for the District Columbia Circuit (D.C. Circuit) reversed, holding that Judicial Watch had standing sue. Judicial Watch U.S. Department Commerce, 583 F.3d 871, 873 (D.C. Cir. 2009). the D.C. Circuit declared, To satisfy the constitutional standing requirement, familiar doctrine requires plaintiff allege injury fact that fairly traceable the challenged conduct and that will likely redressed favorable decision the merits.  Id. (citing Lujan Defenders Wildlife, 504 U.S. 555, 560-61 (1992)). the context FACA claim, the injury requirement obviously met when the agency refuses disclose information that the act requires revealed. Id. (citing Public Citizen United States Department Justice, 491 U.S. 440, 449-50 (1989); Byrd U.S. Environmental Protection Agency, 174 F.3d 239, 243 (D.C. Cir. 1999)). With respect causation and redressability, the D.C. Circuit held that the ultimate issue whether FACA applies consequence.  Id. Because all factual allegations are assumed true the pleading stage, FACA assumed apply motion dismiss.  Id. Therefore, the Court concluded, FACA ultimately was found apply, the Department Commerce would subject array FACA obligations.  Id. the instant matter, Defendants argument that Plaintiff does not have standing rests solely Defendants erroneous determination that the audiotapes are not presidential records and therefore are not subject request under the PRA and FOIA.  According Defendant, Plaintiff has standing sue because claims that the PRA and FOIA not apply.  This argument different from the argument that the D.C. Circuit rejected Judicial Watch, Inc. U.S. Dept Commerce with respect FACA. sum, Defendant determined that the audiotapes are not presidential records.  If, Plaintiff alleges, Defendants determination was erroneous, Defendant will subject array obligations under the PRA. U.S.C.  2203(f)(1).  These obligations include the obligation assume responsibility for the custody, control, and preservation of, and access to the audiotapes under FOIA. Id. Plaintiff plainly requested access under FOIA what alleges are presidential records and Defendant erroneously determined that the requested records are not presidential records. result, Defendant concluded that had obligation make the audiotapes available under FOIA. Consequently, Plaintiff satisfies the injury, causation, and redressability requirements standing.  Judicial Watch, Inc., 583 F.3d 873; see also Massachusetts Environmental Protection Agency, 548 U.S. 497, 526 (2007); National Parks Conservation Association Manson, 414 F.3d (D.C. Cir. 2005). Defendant incorrectly interprets the PRA. 
Defendant argues that provision the PRA requires assume custody and control President Clintons audiotapes. Defs Mem. 12. course, this assumes that Defendant was correct determining that the audiotapes are not presidential records.  Assuming, Plaintiffs Complaint alleges, that the audiotapes are presidential records and Defendants determination was erroneous, Section 2203(f)(1) the PRA could not more clear: 
Upon the conclusion Presidents term office, President serves 
consecutive terms upon the conclusion the last term, the Archivist the United 
States shall assume responsibility for the custody, control, and preservation of, 
and access to, the presidential records that President. U.S.C.  2203(f)(1) (emphasis added).  The PRA would plainly require Defendant take action. 
Therefore, assuming, Plaintiffs Complaint alleges, that the audiotapes are presidential records, Defendant simply wrong about not having take any action with respect the audiotapes.1  Indeed, clear that Defendant failed take discrete agency action that 
Contrary Defendants assertions, there exclusive administrative enforcement scheme that the exclusive method which [Defendant] can recover records under the PRA. Defs Mem. 13.  Defendant argues that the PRA allows Defendant invoke the 
required take. Defs Mem. (quoting Norton Utah Wilderness Alliance, 542 U.S. 55, (2004) (emphasis original)).  The PRA contains specific, unequivocal command (Norton, 542 U.S. 63) directing Defendant assume responsibility for the custody, control, and preservation of, and access to, presidential records, including the audiotapes.  Moreover, the PRA also states that Defendant shall have affirmative duty make [presidential records] available the public rapidly and completely possible. U.S.C.  2203(f)(1). Not only did the PRA require Defendant assume responsibility for the custody, control, and preservation of, and access to, the audiotapes, but also requires Defendant make the audiotapes available the public rapidly and completely possible under FOIA. evident from the plain language the statute, Defendant was legally required assume custody and control the audiotapes. President Clinton not the issue.   
Rather than defend its decision that the audiotapes are not presidential records, Defendant tries divert attention away from that decision blaming President Clinton.  Defs Mem. (the alleged violator here former President the United States).  Moreover, Defendant misconstrues Plaintiffs claim request have this Court review Defendants decision not enforce the PRA seeking recover specific materials from President Clinton  decision that Defendant never reached because erroneously determined that the audiotapes are not presidential records.  Id.  Quite simply, whether President Clinton violated the PRA not issue. While Plaintiffs Complaint alleges paragraph that, [o]n information and belief, 
enforcement scheme the Federal Records Act (FRA) with respect presidential records.  However, Defendant cites case authority support its position that enforcement mechanisms the FRA are exclusive the PRA.  Defs Mem. 14.  Moreover, Plaintiff demonstrates, the PRA mandates that Defendant assume responsibility for the custody, control, and preservation of, and access to, presidential records. 
President Clinton unlawfully retained the requested audiotapes after leaving office, the purpose that allegation identify the current, likely location the audiotapes.  Complaint  16.  Defendant the relevant violator.  Plaintiffs APA claim has nothing with decision  which Defendant never made because erroneously determined the audiotapes are not presidential records  committed agencys discretion.  Rather, Plaintiffs APA claim challenges Defendants decision that the audiotapes are not presidential records and requests that Defendant take action that was legally required take, namely, assume responsibility for the custody, control, and preservation of, and access to, presidential records and make [those presidential records] available the public rapidly and completely possible under FOIA. U.S.C.  2203(f)(1). 	The PRA Does Not Preclude Judicial Review Plaintiffs Claim. 
Defendant argues that judicial review Plaintiffs claim precluded the PRA.  Defendants argument based misconception.  Plaintiff not requesting that the Court review President Clintons recordkeeping practices decisions.  Nor Plaintiff challenging President Clintons classification the audiotapes personal records, fact ever classified them such.  Plaintiff solely challenges Defendants erroneous decision that the audiotapes are not presidential records and requests that the Court order Defendant comply with the clear mandate PRA. 	The Armstrong opinions not apply the    instant matter. 
Contrary Defendants arguments, Armstrong Bush, 924 F.2d 282 (D.C. Cir. 1990) (Armstrong I) and Armstrong Executive Office the President, F.3d 1274 (D.C. Cir. 1993) (Armstrong II) not apply. the D.C. Circuit explained Armstrong II, The Armstrong court discusses only the creation, management, and disposal decisions described the provisions U.S.C.  2203. F.3d 1294 (internal citations omitted).  Plaintiff does not challenging any creation, management, and disposal decisions President Clinton.   
Plaintiff does not request that the Court review any decisions [of President Clinton] regarding whether create documentary presidential record.  Id. The audiotapes have already been created. Nor does Plaintiff ask that the Court review the day-to-day process which presidential records are maintained President Clinton through presidential records management system.  Id.  The presidential records management system used President Clinton between 1993 and 2001 has bearing Plaintiffs October 2009 request Defendant for the audiotapes. Moreover, Plaintiff does not request that the Court review President Clintons decisions dispose any presidential records under the process outlined U.S.C.  2203(c)-(e). Id. Plaintiffs knowledge, disposal the audiotapes not issue.  Complaint  16.  
Because Plaintiff not challenging any creation, management, disposal decisions President Clinton, Plaintiffs APA claim not precluded the PRA under Armstrong Armstrong II. Citizens for Responsibility and Ethics Washington Executive Office the President, 587 Supp. 48, (D.D.C. 2008) (rejecting Defendants motion dismiss because [w]hile the PRA impliedly precludes judicial review the Presidents decisions concerning the creation, management, and disposal presidential records during his term office, none plaintiffs claims seek such review.) (internal citations omitted).   
Nor, Defendant asserts, does Armstrong require dismissal Plaintiffs lawsuit because Plaintiffs Complaint does not include any claims under the FRA FOIA.  Defs Mem. 24. Again, Defendants argument misconstrues Plaintiffs claim.  According Defendant, Armstrong enables judicial review guidelines defining presidential records, but only when the Plaintiff proceeding under FRA- FOIA- based claims.  Id. Yet, evident from the Complaint, Plaintiff not challenging President Clintons guidelines for defining presidential records. Plaintiff challenging Defendants erroneous determination that the audiotapes are not presidential records and its resulting failure assume custody the audiotapes and make them available the public via FOIA. U.S.C.  2203(f)(1). 	Plaintiff not challenging President Clintons     classification the audiotapes. 
Defendant argues that Plaintiffs claim precluded because the PRA evinces clear intent preclude private litigants from challenging the Presidents classification particular record personal. Defs Mem. 25.  Not only this argument wrong, but Defendant does not even present any evidence demonstrate any way that President Clinton ever classified the audiotapes personal records.  Defendant merely asserts, without any evidentiary support, that President Clinton presumably considers the audiotapes to personal records.  Defs Mem. 12. Consequently, fails from both legal and evidentiary standpoint. Armstrong II, the D.C. Circuit explained that the Court Armstrong did not hold that the President could designate any material wishes presidential records, and thereby exercise virtually complete control over notwithstanding the fact that the material does not meet the definition presidential records the PRA.  Armstrong II, F.3d 1293-1294. other words, the PRA does not preclude courts from reviewing the initial classification existing materials.  Id. 1294. Therefore, even Plaintiff were challenging President Clintons classification the audiotapes, judicial review Plaintiffs claim would not precluded. 
However, Plaintiff not challenging President Clintons classification the audiotapes. discussed above, Plaintiffs APA claim solely challenges Defendants erroneous decision that the audiotapes are not presidential records and requests that Defendant take action that was legally required take, namely, assume responsibility for the custody, control, and preservation of, and access to, presidential records and make [those presidential records] available the public rapidly and completely possible under FOIA. U.S.C.  2203(f)(1). sum, judicial review Plaintiffs claim not precluded the text the PRA the 
D.C. Circuits decisions the Armstrong cases. fact, the D.C. Circuit explicitly held Armstrong that its decision Armstrong only precluded judicial review Presidents creation, management, and disposal decisions. F.3d 1294. Because Plaintiff does not challenge any creation, management, and disposal decisions President Clinton related the audiotapes, Plaintiffs claim should not dismissed. 	Defendants Determination That the Audiotapes Are Not Presidential Records Was Arbitrary, Capricious, Abuse Discretion, and  Otherwise not Accordance with the PRA. 
Quite simply, Defendants determination that the audiotapes are not presidential records was not accordance with the PRA. alleged its Complaint, Plaintiff has demonstrated that the audiotapes contain recordings seventy-nine instances President Clinton being President.  More specifically, its November 2009 letter, Plaintiff presented extensive evidence that the audiotapes contained President Clinton conducting activities which related had effect his ability carry out his constitutional, statutory, other official ceremonial duties President. Defendant, date, has not disputed that the audiotapes recorded President Clintons side telephone conversations with members Congress, Cabinet secretaries, and foreign leaders. Nor has disputed that Oval Office Operations had active role creating the audiotapes. 
Instead, Defendant argues that its institutional expertise allowed determine that the audiotapes are not presidential records without gathering any evidence support its conclusion making any effort review the audiotapes. Defendant, fact, did nothing but ignore the extensive evidence presented Plaintiff. Defendant did not inquire whether President Clinton ever classified the audiotapes personal records.  Nor did Defendant review the audiotapes determine whether Plaintiffs evidence was accurate.   
Defendant has not presented any evidence demonstrating that President Clinton classified the audiotapes personal records, nor would such presentation evidence proper motion dismiss for failure state claim.  Therefore, Defendant cannot assert that its decision that the audiotapes are not presidential records uphold[] President Clintons classification the [audiotapes] personal records.  Defs Mem. 37. contrast, Plaintiffs Complaint plainly alleges that Defendants decision that the audiotapes are not presidential records was arbitrary, capricious, abuse discretion, and otherwise not accordance with the PRA.  Therefore, Plaintiffs Complaint plainly states claim for which relief can granted. 

III. CONCLUSION. 

Plaintiff has satisfied the three requirements for standing.  Plaintiff plainly alleges injury fact that fairly traceable the challenged conduct and that will likely redressed favorable decision the merits.  Moreover, the PRA does not preclude Plaintiffs claim.  Finally, Defendants determination that the audiotapes are not presidential records was arbitrary, capricious, abuse discretion, and otherwise not accordance with the PRA.  For the foregoing reasons, the Court has subject-matter jurisdiction over Plaintiffs lawsuit and Plaintiff has stated claim upon which relief can granted.  Defendants motion dismiss therefore should denied. 
Dated: February 22, 2011 Respectfully submitted, 
       Paul Orfanedes 
(D.C. 
Bar No. 429716) 

/s/ Michael Bekesha Michael Bekesha 

(D.C. 
Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 

(202) 646-5172 

Counsel for Plaintiff



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