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United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`October 31, 2008
`
`
`
`No. 08-5412
`
`IN RE: RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED
`STATES, ET AL.,
`PETITIONERS
`
`
`On Petition for Writ of Mandamus
`and Motion for Stay Pending Proceedings
`(D.D.C. No. 08-1548)
`
`
`Gregory G. Katsas, Assistant Attorney General, U.S.
`Department of Justice, Jonathan F. Cohn, Deputy Assistant
`Attorney General, and Mark B. Stern, Michael S. Raab, and
`Mark R. Freeman, Attorneys, were on the petition for writ of
`mandamus and motion to stay pending proceedings and the
`reply.
`
`
`Anne L. Weismann, Melanie Sloan, and David L. Sobel
`were on the response to the petition for writ of mandamus and
`motion to stay pending proceedings.
`
`
`Before: GINSBURG, TATEL, and GRIFFITH, Circuit Judges.
`
`Opinion for the Court filed PER CURIAM.
`
`
`
`
`
`
`
`

`
`2
`PER CURIAM: This litigation concerns the document
`
`retention policies of the Office of the Vice President (OVP)
`under the Presidential Records Act (PRA), 44 U.S.C. §§ 2201
`et seq. Plaintiffs, nonprofit organizations and historians, seek
`declaratory and mandamus relief against OVP, Vice President
`Richard Cheney, the Archivist of the United States, and
`related entities, alleging that OVP applies an unduly narrow
`construction of the statutory term “Presidential records,”
`leading to the misclassification of some vice-presidential
`documents and their subsequent loss to posterity. See 44
`U.S.C. § 2201(2) (defining “Presidential records”); id. § 2203
`(specifying procedures for preservation of presidential
`records); id. § 2207 (applying all terms of PRA to vice-
`presidential records). In response to these charges, OVP
`submitted to the district court two sworn declarations—one
`from Claire O’Donnell, the Vice President’s Deputy Chief of
`Staff, and one from Nancy Kegan Smith of the National
`Archives—denying, as a factual matter, that OVP employs
`any narrowing construction. See Defs.’ Opp. Mot. Prelim.
`Inj. 1-5, 6-16; O’Donnell Decl. 1-5; Smith Decl. 1-4. The
`district court entered a preliminary injunction to preserve the
`status quo while it assessed the “seminal” issue of whether
`OVP is in fact complying with the PRA’s requirements.
`Citizens for Responsibility & Ethics in Wash. v. Cheney
`(“CREW I”), No. 08-1548 (CKK), 2008 WL 4287403, at *8,
`*12 (D.D.C. Sept. 20, 2008). But after a month of litigation
`and several district court requests for clarification, the basic
`issue of what PRA classification policies OVP actually
`practices remains unresolved.
`
`Appreciating the potentially dispositive nature of this
`seemingly intractable factual dispute, and concerned about the
`limited time for briefing before the end of the Administration,
`the district court allowed plaintiffs to depose Nancy Kegan
`Smith and David Addington, the Vice President’s Chief of
`
`
`
`
`
`

`
`3
`Staff. Citizens for Responsibility & Ethics in Wash. v. Cheney
`(“CREW II”), No. 08-1548 (CKK), slip op. at 18 (D.D.C.
`Sept. 24, 2008). The district court confined these depositions
`to a narrow range of topics that would allow plaintiffs to
`follow-up on factual questions that OVP had put at issue in its
`declarations and directed that they be conducted in the
`presence of a judicial officer to resolve privilege issues and
`prevent any overreaching. Id. at 18-20. OVP nonetheless
`petitions for mandamus, asking us to vacate the district
`court’s discovery order as an “unprecedented” intrusion into
`the prerogatives of the Vice Presidency. Pet. 1.
`
`
`
`An “extraordinary remedy,” mandamus is justified only
`in “exceptional circumstances amounting
`to a
`judicial
`usurpation of power.” Cheney v. U.S. Dist. Court, 542 U.S.
`367, 380 (2004) (internal quotation marks omitted). The
`tripartite standard for issuance of the writ is therefore
`exacting: the right to relief must be “clear and indisputable”;
`there must be “no other adequate means to attain the relief”;
`and “the issuing court, in the exercise of its discretion, must
`be satisfied
`that
`the writ
`is appropriate under
`the
`circumstances.” Id. at 380-81 (internal quotation marks
`omitted). In the context of discovery ordered against the Vice
`President, the Supreme Court has instructed that we “ask, as
`part of this inquiry, whether the District Court’s actions
`constituted an unwarranted impairment of another branch in
`the performance of its constitutional duties.” Id. at 390.
`
`
`
`
`
`OVP argues that it has a clear and indisputable right to
`relief from the depositions because the district court ordered
`“intrusive” discovery while refusing to consider a winning
`threshold argument for dismissal under our precedent in
`Armstrong v. Bush, 924 F.2d 282, 291 (D.C. Cir. 1991)
`(holding that PRA impliedly precludes judicial review of
`decision to destroy presidential records). In pressing for
`
`

`
`4
`mandamus, OVP places singular reliance on the Supreme
`Court’s decision in Cheney, 542 U.S. at 390, and on our
`decision following that remand, In re Cheney, 406 F.3d 723,
`728, 731 (D.C. Cir. 2005) (en banc). We agree that those
`decisions stand for the general principle that mandamus may
`be warranted where valid threshold grounds for dismissal,
`denied by the district court, would obviate the need for
`intrusive discovery against the Vice President. But for several
`reasons, as explained below, we are convinced that Cheney
`requires only limited mandamus relief here, regardless of the
`merits of OVP’s argument under Armstrong.
`
`First and foremost is the litigation posture of this case in
`the district court. OVP implies in its petition that the district
`court refused numerous attempts to move for dismissal based
`on Armstrong, see, e.g., Pet. 2, but this finds no support in the
`record. OVP’s filings in the district court fully developed its
`factual argument that it was complying with the PRA, see
`Defs.’ Opp. Mot. Prelim. Inj. 1-16; Defs.’ Mot. Recons. 1-7;
`Smith Decl.; O’Donnell Decl.; Second Suppl. O’Donnell
`Decl., while making only oblique reference to “jurisdictional”
`arguments to be named later and citing Armstrong only in
`passing. Indeed, the district court did allow OVP to “raise
`any of [its] unspecified jurisdictional arguments in a motion
`to dismiss pursuant to the briefing schedule set by the Court,”
`Citizens for Responsibility and Ethics in Wash. v. Cheney
`(“CREW III”), No. 08-1548 (CKK), 2008 WL 4457871, at *2
`(D.D.C. Oct. 5, 2008), but OVP failed to do so. Not until it
`asked the district court to stay its discovery order did OVP
`clearly argue that the entire factual inquiry—which it raised—
`should be set aside in view of Armstrong. See CREW III,
`2008 WL 4457871, at *11 (relying on defendants’ conduct in
`denying stay pending petition for mandamus); see generally
`CREW II (detailing procedural history below). By contrast, in
`Cheney a motion to dismiss had been briefed and decided
`
`
`
`
`
`

`
`5
`before any request for mandamus. In the judgment of the
`district court here, the current litigation posture necessitates
`limited discovery to permit timely adjudication of the factual
`defense OVP has itself raised. On the basis of the procedural
`record in the district court and given the deference we owe
`trial courts in the management of their cases, e.g., Berry v.
`Dist. of Columbia, 833 F.2d 1031, 1037 n.24 (D.C. Cir.
`1987), that judgment is not remotely one from which
`defendants have an indisputable right to relief.
`
`
`
`This case differs from Cheney for a second reason. In
`Cheney discovery would have provided plaintiffs “all the
`disclosure to which they would [have] be[en] entitled in the
`event they prevail[ed] on the merits, and much more besides.”
`542 U.S. at 388. This rendered an appeal from final judgment
`inadequate and counseled strongly for immediate mandamus
`relief to prevent the horses from irretrievably exiting the barn.
`Here the discovery is far more limited and does not itself
`provide the relief sought in the complaint. The depositions
`are intended to allow follow-up questioning on facts OVP has
`itself put in evidence, not to allow interrogatories and
`document production requests on “everything under the sky.”
`Id. at 387. Moreover, the ultimate relief plaintiffs seek here is
`a declaration on whether OVP’s classification policy is
`consistent with the PRA, as well as possible mandamus to
`preserve records—relief far beyond merely allowing follow-
`up questions on the issue of what classification policy the
`Office actually follows.
`
`
`
`
`
`The discovery here is thus appropriately narrow, save in
`one respect. David Addington is the Vice President’s Chief
`of Staff and has no apparent involvement in this litigation.
`Plaintiffs have so far shown no need for the deposition of
`such a high-ranking member of the Office, especially when
`O’Donnell would seem more logically suited to clearing up
`
`

`
`6
`lingering questions regarding her own affidavits. OVP has
`asked to designate a different witness, Pet. 14 n.8, and
`because O’Donnell—perhaps among others—represents a
`seemingly viable alternative, deposing Addington would
`constitute an “unwarranted impairment” of the functioning of
`OVP. Cheney, 542 U.S. at 390. The duties of high-ranking
`executive officers should not be interrupted by judicial
`demands for information that could be obtained elsewhere.
`See, e.g., Simplex Time Recorder Co. v. Sec’y of Labor, 766
`F.2d 575, 586 (D.C. Cir. 1985). Therefore we conclude that
`OVP has a clear and indisputable right to relief from the
`deposition of the Vice-President’s Chief of Staff and no other
`means of obtaining that relief. Our discretion to issue the writ
`of mandamus extends to directing the district court to modify
`its discovery order, as OVP requested in the alternative. See
`Cheney, 542 U.S. at 390 (noting that “narrow[ing], on its
`own, the scope of the subpoenas” is “but one example of the
`choices available to the District Court and the Court of
`Appeals”).
`
`If we assume substitution of O’Donnell for Addington,
`all the district court has proposed is to allow follow-up with
`individuals who have already seen fit to go under oath—one
`of whom is not a member of the Vice President’s staff at all.
`No exhaustive document searches are required and the
`questions will be supervised by a judicial officer to prevent
`overreaching. Even if OVP has a winning Armstrong
`argument, allowing this course will cause it little to no
`inconvenience, making mandamus inappropriate. Should
`OVP file and the district court eventually deny the still
`notional motion to dismiss, there will be ample opportunity
`for review, whether by mandamus or on direct appeal as
`circumstances warrant.
`
`
`
`
`
`
`

`
`7
` We direct the district court to allow substitution of an
`appropriate witness for Addington. In all other respects, the
`petition for mandamus is denied.
`
`
`
`
`
`
`
`
`
`
`So ordered.

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