Records Managers

Reply Brief for Appellants - Filed August 28, 1998

[Table of Contents]

[SCHEDULED FOR ORAL ARGUMENT OCTOBER 20, 1998]

Nos. 97-5356, 98-5173

THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


BLIC CITIZEN, ET AL.,

aintiffs-Appellees,

JOHN CARLIN, ARCHIVIST OF
THE UNITED STATES, ET AL.

Defendants-Appellants.


ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR APPELLANTS


OF COUNSEL: FRANK W. HUNGER
Assistant Attorney General
MARK LINDSAY
Chief of Staff and General Counsel STEPHEN W. PRESTON
Office of Administration Deputy Assistant Attorney General
BRUCE OVERTON DOUGLAS N. LETTER
Associate General Counsel (202) 514-3602
Office of the U.S. Trade Representative Appellate Litigation Counsel
MIRIAM NISBET MATTHEW M. COLLETTE
Special Counsel for Information Policy (202) 514-4314
National Archives and Records Administration Attorney, Appellate Staff
Civil Division, Room 9552
Department of Justice
Washington, D.C. 20530-0001

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TABLE OF CONTENTS

GLOSSARY

TABLE OF AUTHORITIES

INTRODUCTION AND SUMMARY OF ARGUMENT

ARGUMENT

I. THE DISTRICT COURT ERRED IN HOLDING THAT GRS 20 EXCEEDS THE AUTHORITY OF THE ARCHIVIST

A.  The District Court Erred In Holding That GRS 20 Is Invalid Because It Is Not Limited To &Housekeeping& Records

B.  The Archivist Made The Requisite Determination That Records Subject To GRS 20 Lack Sufficient Value To Warrant Their Continued Preservation

C.  The District Court Erred In Holding That GRS 20 Violates The Statute By Failing To Identify A "Specified Period Of Time" For The Disposal Of Records

II. THE EXECUTIVE OFFICE OF THE PRESIDENT IS NOT A PROPER PARTY TO THIS ACTION

III.  THE DISTRICT COURT ERRED IN AWARDING INJUNCTIVE RELIEF

CONCLUSION

D.C. CIRCUIT RULE 28(d) CERTIFICATE

CERTIFICATE OF SERVICE


TABLE OF AUTHORITIES

Cases

* Armstrong v. EOP, 1 F.3d 1274 (D.C. Cir. 1993)

Bolden v. Blue Cross & Blue Shield Ass'n, Inc.,
   848 F.2d 201 (D.C. Cir. 1988)

Bowman Transp., Inc. v. Arkansas-Best Freight
   Sys., Inc.,
419 U.S. 281 (1974)

Brogan v. United States, 118 S. Ct. 805 (1998)

* Chevron U.S.A., Inc. v. Natural Resources Defense
     Council,
467 U.S. 837 (1984)

Citizens to Preserve Overton Park v. Volpe,
   401 U.S. 402 (1971)

Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995)

Cross-Sound Ferry Servs., Inc. v. ICC,
   934 F.2d 327 (D.C. Cir. 1991) 12

* Kennedy v. Mendoza-Martinez,
     372 U.S. 144 (1963) 22-23

Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
   Auto Ins.
, 463 U.S. 29 (1983) 12

National Mining Ass'n v. EPA,
    59 F.3d 1351 (D.C. Cir. 1995)

* National RR Passenger Corp. v. Boston & Maine Corp.,
     503 U.S. 407 (1992)

Perez v. Ledesma, 401 U.S. 82 (1971)

Power Reactor Co. v. International Union of Elec.,
   Radio & Mach. Workers,
367 U.S. 396(1961)

Public Citizen, Inc. v. Federal Aviation Admin.,
   988 F.2d 186 (D.C. Cir. 1993)

* Republican Nat'l Comm. v. FEC, 76 F.3d 400
     (D.C. Cir. 1996)

Rust v. Sullivan, 500 U.S. 173 (1991)

Steffel v. Thompson, 415 U.S. 452 (1974)

* United States v. Espy, 145 F.3d 1367
     (D.C. Cir. 1998)

Wong Yang Sung v. McGrath, 339 U.S. 33,
    modified, 339 U.S. 508 (1950)

Yee v. City of Escondido, 503 U.S. 519 (1992)

Statutes:

Federal Records Act:
    44 U.S.C.§ 2901(14)
    * 44 U.S.C. § 3303a(d)

3 U.S.C. &s§ 401-31

3 U.S.C. &s§ 401(a)(4)(A)

28 U.S.C. § 2201

40 U.S.C. § 472(a)

Regulations:

 

3 C.F.R.  § 101.1

3 C.F.R.  § 102.103

36 C.F.R. § 1222.32

36 C.F.R. § 1234.2

36 C.F.R.  § 1234.24

36 C.F.R.  § 1234.24(b)(1)

36 C.F.R.  § 1234.30(a)

36 C.F.R.  § 1234.32(d)(1)

60 Fed. Reg. 44,634 (1995)

60 Fed. Reg. 44,634-35 (1995)

60 Fed. Reg. 44,638 (1995)

60 Fed. Reg. 44,639 (1995)

* 60 Fed. Reg. 44,643 (1995)

60 Fed. Reg. 44,643-45 (1995)

60 Fed. Reg. 44,644 (1995)

60 Fed. Reg. 44,645 (1995)

60 Fed. Reg. 44,647 (1995)

61 Fed. Reg. 4802 (1996)

61 Fed. Reg. 34,450 (1996)

Executive Orders:

 

Exec. Order No. 12731

Legislative Materials:

 

* S. Rep. No. 79-447, 79th Cong., 2d Sess. (1945)

* H.R. Rep. No. 79-361, 79th Cong., 2d. Sess.    (1945)

H.R. Rep. No. 93-876, 93d Cong., 2d Sess.,
     reprinted in 1974 U.S.C.C.A.N. 6267

* Authorities chiefly relied upon are marked with an asterisk.

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GLOSSARY

AR: Administrative Records
AR-Supp: Supplemental Administrative Records
E-Mail: Electronic Mail
EOP: Executive Office of the President
FOIA: Freedom of Information Act
FRA: Federal Records Act
GRS: General Records Schedule
JA: Joint Appendix
NARA: National Archives and Records Administration
OA: Office of Administration
USTR: United States Trade Representative

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INTRODUCTION AND SUMMARY OF ARGUMENT


        There are two overarching themes recurring throughout plaintiffs' brief and both reveal basic misconceptions. The first concerns what General Records Schedule 20 ("GRS 20") actually does, and leads to plaintiffs' mistaken characterization of the effect of the agency policy at issue. The second involves plaintiffs' incorrect assumption that one of the defendants here - the Archivist of the United States - does not agree with the legal position stated in our opening brief. On this second point, plaintiffs also ask this Court to look to statements outside the administrative record; not only is this improper as a matter of law, but the statements plaintiffs point to in no way undermine the validity of defendants' position here.

        In our opening brief, we showed that GRS 20 represents a legally-authorized approach to the difficult problem of dealing with records existing on "live" desktop computer applications. In issuing GRS 20, the Archivist found that, once electronic records are preserved in an agency's official recordkeeping system, the versions remaining on "live" desktop computer applications lack sufficient value to warrant further preservation. The Archivist also found that agencies must be able to delete electronic source documents from their "live" systems to avoid overload. GRS 20 therefore directs agencies to preserve these electronic records in appropriate recordkeeping systems that preserve their structure, content, and context, and then to delete the versions that remain on the "live" system once they are no longer needed for updating or revision. The district court here failed to accord appropriate deference to the Archivist's decision to issue GRS 20, and improperly second-guessed the Archivist's policy choices.

        We argue below that plaintiffs' responsive brief reflects a fundamental misunderstanding of what GRS 20 does. GRS 20 does not, as plaintiffs seem to believe, allow the destruction of the "only" electronic version of records, nor does it require the deletion of "all" electronic records. Rather, GRS 20 is a neutral procedural device that requires agencies to preserve records in the agency's appropriate recordkeeping system, and then, once the records have been preserved, permits agencies to delete the remaining versions from the "live" desktop computer applications. Whether an agency's authorized recordkeeping system is paper or electronic, GRS 20 operates in the same fashion.

        Plaintiffs declare that they have no intention of preventing the deletion of electronic material from agencies' "live" desktop applications. Pl. Br. 38. Rather, they maintain that the Archivist must schedule electronic records for disposal after analyzing each agency's ability to preserve records in electronic format. Id. at 3, 38. However, the development of agency recordkeeping systems - whether electronic, paper, or microform - is an entirely separate matter. See 60 Fed. Reg. 44,643, 44,644 (1995). The Archivist has recently been working with individual agencies to encourage and aid the move to electronic recordkeeping, which is certainly desirable in the long-term. It is essential to recognize, however, that this process has little to do with the validity of GRS 20. GRS 20 leaves the determination of whether an agency's recordkeeping system is paper or electronic to other processes.

        As noted above, a second striking aspect of plaintiffs' responsive brief is their repeated incorrect contention (Pl. Br. 3, 15, 20) that the Archivist agrees with the district court's conclusions, and their suggestion that this appeal is designed only "to provide an excuse for disregarding the district court's ruling" (Pl. Br. 20). This assertion is specious. The government's opening brief defending the validity of GRS 20 and urging reversal of the district court's judgment was reviewed at the highest levels of the National Archives and Records Administration (NARA) and the other defendant agencies.

        Contrary to plaintiffs' representation, we do not ask "to delay as long as possible in achieving an end the Archivist agrees is sound public policy" (Pl. Br. 3). The defendant government agencies merely ask that the Archivist be allowed to develop policy, in conjunction with other federal agencies, free from the district court's mistaken interpretation of the Archivist's statutory authority.

        The issue before this Court now is whether GRS 20 is a permissible implementation of the governing statutory scheme, in light of the administrative record. This issue is to be determined on the basis of the rationale underlying the regulation at the time it was issued by the Archivist. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971). Wholly apart from this issue, given the rapid changes in technology, the Archivist has quite properly been studying electronic recordkeeping and GRS 20, with an eye to issuing new policies in the future. At the conclusion of his study, the Archivist might elect to implement new policies concerning electronic recordkeeping, and might decide to revise GRS 20. But that is a determination to be made by the Archivist, since the statute provides him with the flexibility to adapt recordkeeping procedures to changing technology and needs. This ongoing administrative process tells the Court nothing about whether the current version of GRS 20 is a permissible application of the governing scheme.

        Thus, contrary to the clear implication of plaintiffs' brief, there is no basis in administrative law for using discussions of proposed changes in agency policy to undermine the validity of an agency's current rule. And there certainly is no basis for using agency proposals designed to comply with a district court's ruling as evidence that the district court's ruling is correct. An agency is entitled to "'consider varying interpretations and the wisdom of its policy on a continuing basis." Republican Nat'l Comm. v. FEC, 76 F.3d 400, 406 (D.C. Cir. 1996) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 863-64 (1984)); see Rust v. Sullivan, 500 U.S. 173, 186-87 (1991). If subsequent policy discussions or proposals were used to undermine the validity of the agency's current policy, agencies would be discouraged from engaging in open processes to reexamine their policies. Cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 47 (1950) (refusing to infer that agency admits its construction of the statute is wrong by seeking congressional ratification of its position), modified, 339 U.S. 508 (1950). This Court should not sanction such an approach.

        2.  We also show in this brief that, in arguing that the Executive Office of the President (EOP) is a proper party to this action, plaintiffs ignore the statutory language, and instead claim that the government's own representations show that the EOP is an agency subject to suit. Yet all of the evidence upon which plaintiffs rely merely shows that certain entities are part of the EOP, and not that the EOP is an independent agency subject to suit. Moreover, the regulations and statutes that plaintiffs claim show the EOP is a separate entity actually show the opposite, referring to entities within the EOP. While individual EOP agencies may be subject to suit, the EOP is not.

        3. With respect to the district court's remedial order, plaintiffs respond to arguments we did not make. We do not argue that agencies are free to disregard court judgments, but merely contend that a declaratory judgment does not require the government to nullify a government-wide regulation before the appellate courts have had an opportunity to review the district court's declaratory judgment. In the case at bar, the government followed the rational course of exploring efforts to comply with the district court's declaratory judgment without causing undue disruption by rescinding a government-wide policy before appellate review is complete.

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ARGUMENT

I. THE DISTRICT COURT ERRED IN HOLDING THAT
GRS 20 EXCEEDS THE AUTHORITY OF THE ARCHIVIST.

A. The District Court Erred In Holding That GRS 20 Is Invalid
Because It Is Not Limited To "Housekeeping" Records.

        1. The Federal Records Act authorizes the Archivist to issue general schedules covering "records of a specified form or character common to several or all agencies," 44 U.S.C. 3303a(d), with nothing to suggest a per se rule limiting those schedules to "housekeeping" or "administrative" records. Strikingly, plaintiffs begin their argument on statutory construction without discussing the actual language of the statute. Instead plaintiffs jump right to the legislative history, pointing out (Pl. Br. 21) that the committee reports accompanying the 1945 statute contemplated that general records schedules would be used for "housekeeping" records. See H.R. Rep. No. 79-361, 79th Cong., 2d. Sess. 1 (1945); S. Rep. No. 79-447, 79th Cong., 2d Sess. 1 (1945). Yet plaintiffs point to no congressional statements that suggest that the statute is limited to "housekeeping" records, and they simply ignore the long-standing principle identified in our opening brief (at 26-27) that the unqualified language of a statute is not restricted "to the particular evil that Congress was trying to remedy. Brogan v. United States, 118 S. Ct. 805, 809 (1998).

        When plaintiffs finally discuss the statutory language (Pl. Br. 22, 27-28), they make no effort to find a limitation in the statutory authorization for general records schedules covering records "of a specified form or character common to several or all agencies." See 44 U.S.C. 3303a(d). Instead, plaintiffs assert that such a proposed limitation arises when that language is considered along with the requirement that the Archivist determine that records covered by a general records schedule lack sufficient value to warrant preservation.

        Yet this requirement says absolutely nothing about limiting general records schedules to only "housekeeping" or "administrative" records. As discussed below and in our opening brief (at 29-42), the Archivist has reasonably found that the records subject to GRS 20 lack sufficient value to warrant preservation on the "live" systems after they have been transferred to an appropriate recordkeeping system. The fact that plaintiffs disagree with that finding does not show Congress addressed the "precise question at issue" or that the Archivist's interpretation is not "a permissible construction of the statute." See Chevron, 467 U.S. 837 at 842, 843-44.

        2. Plaintiffs argue that the Archivist's current construction of the statute is not entitled to deference because the Archivist has stated in the past that general records schedules are used for "administrative" records. As they have done with the legislative history, plaintiffs take past NARA statements describing general records schedules as allowing for the disposal of administrative records and transform them into statements that general records "are only appropriate for housekeeping or administrative records." See, e.g., Pl. Br. 26 (emphasis supplied). However, none of the statements cited by plaintiffs actually says what plaintiffs wish. The majority of them merely describe the bulk of the general records schedules existing at the time, and say nothing about whether there is a statutory or regulatory limitation. See AR 2324; cf. Republican Nat'l Comm., 76 F.3d at 405 (commissioners' statements that one request for information would be sufficient could not be interpreted as a statement "that the statute mandated only one request") (emphasis in original). Moreover, as we explained in our opening brief (at 32), previous NARA statements that "administrative" records should not be mixed with "program" records are fully consistent with GRS 20, which preserves program records by requiring that they be transferred to the agency's recordkeeping system. See 60 Fed. Reg. at 44,644.

        Thus, as we pointed out in our opening brief (at 32-33) the Archivist has, where appropriate, issued general records schedules governing "program" records. See JA 141-47 (GRS 17 covering "Cartographic, Photogrammetric, and Related Records"); JA 167 (1963 schedule governing program records in the custody of NARA).1 Indeed, GRS 23, the predecessor to portions of GRS 20, covered program records from 1988, at the same time plaintiffs claim NARA had a supposed policy of limiting general records to "housekeeping" documents. See 60 Fed. Reg. at 44,643; AR 795-99. Plaintiffs dismiss these previous schedules as "isolated" instances (Pl. Br. 26), but they make no attempt to reconcile them with their repeated assertions that the unambiguous NARA policy was to limit general records schedules to "housekeeping" records.

        Plaintiffs also contend (Pl. Br. 24) that deference is not warranted because "the Archivist has not articulated any interpretation" of the statute. However, an agency need not explicitly point to every issue of statutory construction that underlies its decision. As the Supreme Court has instructed, "we defer to an interpretation which was a necessary presumption of the [agency]'s decision." National RR Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 420 (1992). In Boston & Maine, for instance, the Court deferred to the Interstate Commerce Commission's construction of a statute authorizing the ICC to condemn property that is "required for intercity rail passenger service" even though the ICC's opinion was not "explicit in all its details," stating: "But the fact that the ICC's decision did not in so many words articulate its interpretation of the word 'required' does not mean that we may not defer to that interpretation, since the only reasonable reading of the Commission's opinion * * * is that the ICC's decision was based on the proffered interpretation." Id. at 420.

        Moreover, plaintiffs are simply wrong when they claim (Pl. Br. 24) that the Archivist did not address comments that GRS 20 improperly allows the disposal of "program" rather than solely "administrative" records. The Archivist explained that these concerns were unfounded, since "unique program records that are produced with office automation will be maintained in organized, managed office recordkeeping systems" where their disposition would be controlled by other records disposition schedules. 60 Fed. Reg. at 44,644. The Archivist reemphasized this point in concluding his preamble, stating: "As indicated in the responses to comments above, approval of GRS 20 will not affect unique program records that have been preserved in a recordkeeping system." Id. at 44,647.

        The Archivist plainly determined that the governing statute permits the issuance of GRS 20 notwithstanding the fact that this rule covers "program" records. That determination is entitled to deference.

        3. We also showed in our opening brief (at 33-39) that, even if one assumes that the applicable statute limits general records schedules to "housekeeping" records, GRS 20 is valid because it serves a housekeeping function. The Archivist reasonably determined that, once electronic records have been transferred to an agency's recordkeeping system, the versions remaining on the "live" e-mail and word processing system are transitory in nature and may be deleted as a housekeeping matter. Plaintiffs' contention (Pl. Br. 29) that this argument is a post hoc rationale that was "never articulated by the Archivist" when he issued GRS 20 is incorrect. The Archivist specifically referred to the need for agencies to delete material from "live" office automation systems "to avoid system overload and ensure effective records management." 60 Fed. Reg. at 44,644.

        Plaintiffs contend (Pl. Br. 28-29) that this "housekeeping function" rationale would obliterate the distinction between administrative and program records because record destruction is always a "housekeeping" activity. That is not accurate. Even where deletion serves a housekeeping function, the Archivist must make a determination that the records covered by the schedule lack sufficient value to warrant their continued preservation. As discussed below, the Archivist made such a finding in this instance, and that finding was neither arbitrary nor capricious.

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B. The Archivist Made The Requisite Determination That Records Subject To GRS 20 Lack Sufficient Value To Warrant Their Continued Preservation.

        Our opening brief (at 39-42) discusses the Archivist's explicit findings that, once electronic records have been placed in an agency's recordkeeping system, the versions remaining on "live" systems are "of limited use to both the originating agency and to future researchers." See 60 Fed. Reg. at 44,645. The Archivist explained that these records exist in "disparate electronic files" that cannot be readily accessed and searched. Id. at 44,643-45. To have enduring value, the Archivist concluded, these records must be transferred to the agency's recordkeeping system C be it paper, electronic, or microform - where they will be evaluated and either retained or disposed of in accordance with a substantive evaluation of their value. Ibid; see 36 C.F.R. 1234.32(d)(1) (e-mail messages have "no continuing value" once they are transferred to an appropriate recordkeeping system).

        In light of these findings, plaintiffs' assertion (Pl. Br. 32) that the Archivist did not make a determination that the records scheduled under GRS 20 "lack sufficient administrative, legal, research or other value to warrant their continued preservation" is incorrect. Given the explicit references to the limited search and indexing capability of the "live" systems and the needs of "future researchers," plaintiffs' contention (Pl. Br. 13) that the interests of future researchers played no role in the process is especially puzzling.

        While plaintiffs correctly point out that an agency must articulate a reasoned basis for its decision, see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29, 57 (1983), they neglect to note that this requirement is not "particularly demanding." Public Citizen, Inc. v. Federal Aviation Admin., 988 F.2d 186, 197 (D.C. Cir. 1993); see Republican Nat'l Comm., 76 F.3d at 407. An agency's decision must be upheld even if its findings are of "less than ideal clarity" as long as "the agency's path may reasonably be discerned." Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974); Cross-Sound Ferry Servs., Inc. v. ICC, 934 F.2d 327, 330 (D.C. Cir. 1991). The agency's decision must be upheld if the agency decision enables the court "to see what major issues of policy were ventilated ... and why the agency reacted to them as it did." Public Citizen, 76 F.3d at 407 (ellipses in original); see Republican Nat'l Comm., 988 F.2d at 197. The Archivist's extensive discussion of the rationale for GRS 20 plainly satisfies this standard, and plaintiffs' argument to the contrary asks this Court to adopt an approach to judicial review under the Administrative Procedure Act that is wholly out of step with the precedents of this Court and the Supreme Court.

        Plaintiffs rest their case primarily upon their contention that the Archivist cannot justify GRS 20 without finding that it is better to store electronic records on paper rather than in electronic recordkeeping systems. Indeed, plaintiffs proclaim that neither they nor the district court contemplate that electronic records must be kept on the "live" systems. According to plaintiffs, the issue "is not whether records may be removed from 'live' systems," but whether records should be retained in electronic or hard copy format. Pl. Br. 38.

        Yet the deletion of records from the "live" systems is precisely the issue in this case, since that is all that GRS 20 authorizes. Whether or not the records are transferred to an electronic or a paper recordkeeping system, they must be preserved with their content and structure intact before they can be deleted from the "live" system pursuant to GRS 20. As the Archivist explained, the development of an appropriate recordkeeping system capable of preserving the records (whether electronically or otherwise) is a separate matter beyond the scope of GRS 20. 60 Fed. Reg. at 44,644 ("Separate NARA guidance and regulations instruct agencies to appropriately preserve records that are produced through office automation in the form that they determine is best to accomplish their mission within their administrative and fiscal capabilities."); see also 60 Fed. Reg. 44,634, 44634-35, 44,639 (1995). Paper recordkeeping systems are prevalent today and are fully lawful. Id. at 44,638, 44,644. If an agency's official system of recordkeeping is paper, it is far more useful to employees and future researchers that e-mail messages and other electronic documents be captured on paper and filed in their properly searchable paper recordkeeping system, rather than stored on disparate live systems that increasingly burden the agency's computer capacity.

        Plaintiffs' observation (Pl. Br. 33-34) that the format of records is one of the factors relevant to analyzing their value does not advance their argument. In issuing GRS 20, the Archivist considered the value of electronic records on "live" word processing and electronic mail systems, concluding that because these records exist in "disparate electronic files" that are not searchable and accessible, they are of little value to the agency or to outside researchers. See 60 Fed. Reg. at 44,643-45.

        At bottom, plaintiffs' real challenge is not to the Archivist's lack of findings, but to the rationality of those findings. According to plaintiffs, electronic records have unique value that is not captured by paper copies, and therefore the Archivist could not possibly make a reasonable finding that the electronic records subject to GRS 20 lack sufficient value to warrant their continued preservation. Like the district court, however, plaintiffs mistakenly seek to evaluate the records as though they existed on electronic recordkeeping systems rather than on "live" systems.

        For instance, plaintiffs rely (Pl. Br. 34-35) upon general statements by the Archivist that electronic records have certain unique value. These statements are beside the point. While electronic records in recordkeeping systems provide greater research value (AR 2241, AR-Supp. P255), the value of electronic records on "live" systems is limited. Plaintiffs suggest (Pl. Br. 39) that the Archivist's conclusion that these records are of limited value is incorrect because e-mail and word processing applications allow users to transfer files and to organize documents and messages in folders and files. Yet the fact that a given user can transfer a file to another user or organize his or her own documents into folders that may be indexed does not make them readily accessible to others, nor does it establish these applications as recordkeeping systems. See 36 C.F.R. 1234.2 (defining "electronic recordkeeping system" as a system "in which records are collected, organized, and categorized to facilitate their preservation, retrieval, use and disposition"); id. 1234.24(b)(1) (criteria for developing recordkeeping system for storage of e-mail); id. 1234.30(a) (setting criteria for electronic records storage media).

        Plaintiffs' contention (Pl. Br. 40) that important information is lost when an electronic document is printed suffers from a similar flaw. As we pointed out in our opening brief (at 36), GRS 20 authorizes deletion only for records that have been transferred to a recordkeeping system that "preserves their content, structure and context * * *." 60 Fed. Reg. at 44,644. This directive ensures that a full and complete record of government activity is preserved.

        Plaintiffs dismiss this requirement because it appears in the preamble rather than from GRS 20 itself. However, the preamble may be used to construe the meaning of GRS 20. See National Mining Ass'n v. EPA, 59 F.3d 1351, 1355 n.7 (D.C. Cir. 1995). Moreover, NARA has made this requirement clear through other guidelines and directives. See, e.g., 36 C.F.R. 1222.32, 1234.24; AR 2464, 2466-68.

        Finally, plaintiffs' contention (Pl. Br. 40-41) that GRS 20 is inconsistent with this Court's decision in Armstrong v. EOP, 1 F.3d 1274 (D.C. Cir. 1993), is wrong. The Armstrong Court did not address the issue whether the Archivist could issue a general records schedule covering electronic records, but merely held that electronic mail messages do not lose their status as "records" once they are printed, and therefore must be managed in accordance with the Federal Records Act. Id. at 1284. Plaintiffs suggest that the Armstrong Court contemplated that electronic records would be disposed of through individual schedules rather than general records schedules, since the Court cited the provision governing individual schedules when it mentioned that agencies could delete such records with the Archivist's approval. See id. at 1287. Yet there is no basis to assume merely from this that the Court meant to hold that the Archivist's approval was limited to individual records schedules. That issue was not presented in Armstrong, and there is no dispute that general records schedules are one of the methods the Archivist can use to "approve" the disposal of records.

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C. The District Court Erred In Holding That GRS 20 Violates The Statute By Failing To Identify A "Specified Period Of Time" For The Disposal Of Records.

        Plaintiffs contend that GRS 20 violates the statute because it allows agencies to delete electronic records "when no longer needed for updating or revision," without specifying a specific time period. As we discussed in our opening brief (at 43), however, the statute nowhere requires a time period of days, weeks, months, or years, and the Archivist reasonably determined that disposition can be authorized at the occurrence of a triggering event.

        Plaintiffs' contention (Pl. Br. 43) that this argument was not raised below is mistaken. Our district court briefs specifically argued that the Archivist reasonably construed the statute as authorizing the general command that disposition occur once the agency has placed the record in its recordkeeping system. See Reply Memorandum In Support of Motion for Summary Judgment, at 28. That discussion was sufficient to preserve the issue. See Yee v. City of Escondido, 503 U.S. 519, 534-35 (1992).

        Plaintiffs' contention (P. Br. 42) that GRS 20 improperly gives agencies "unilateral authority" to dispose of their records is misconceived. GRS 20 allows disposal only after the agency follows a specific directive to place the record in its recordkeeping system in a manner that preserves its content, structure, and context. Moreover, the direction to delete word processing documents when they are "no longer needed for updating or revision" is not open-ended, but is simple and straightforward. Documents are not revised endlessly; they are eventually completed and sent forward. Far from leaving discretion solely to the agency, GRS 20 requires that the record be deleted once the document is put in "final" and will no longer be updated or revised.

        Plaintiffs point to several NARA disposition handbooks, arguing (Pl. Br. 43) that the Archivist's own statements mandate a specific retention period. Yet plaintiffs neglect to mention that both of the statements they cite concern the submission of individual disposition schedules by agencies and not the standards governing general records schedules. See AR 2321; AR-Supp., NARA, Disposition of Federal Records (1981), at 27. In any event, both handbooks recognize that an agency may specify a "contingent" retention period triggered by future events. AR 2321; AR-Supp, 1981 Handbook, at 28.

        Indeed, as we noted in our opening brief (at 43), since 1946, the Archivist has issued general records schedules directing that agencies dispose of records "when no longer needed" or "until superseded or obsolete." Plaintiffs take issue with our statement that these schedules were ratified by Congress, pointing out (Pl. Br. 43-44) that the schedules were reviewed only by a congressional committee. This contention overlooks the fact that Congress repeatedly amended the Records Disposal Act without taking issue with these schedules. Courts have often recognized that congressional acquiescence in an agency's construction, as communicated to a congressional committee, supports the agency's interpretation of the statute. See Power Reactor Co. v. International Union of Elec., Radio & Mach. Workers, 367 U.S. 396, 408 (1961); Bolden v. Blue Cross & Blue Shield Ass'n, Inc., 848 F.2d 201, 209 (D.C. Cir. 1988).

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II. THE EXECUTIVE OFFICE OF THE PRESIDENT IS NOT A PROPER PARTY TO THIS ACTION.

        In our opening brief (at 46-49), we showed that the EOP is not a proper party to this action. The EOP is umbrella designation for various separate components that function in close proximity to the President. It has no independent existence and functions, and therefore does not fall within the definition of "executive agency" in the Federal Records Act. See 44 U.S.C. 472(a).

        Plaintiffs make no attempt to show that the EOP is an "executive agency" under the Federal Records Act, nor do they attempt to defend the district court's reliance on the definition of "agency" in the Freedom of Information Act (FOIA). Indeed, plaintiffs surprisingly ignore this Court's recognition that "it has never been thought that the whole Executive Office of the President could be considered a discrete agency under FOIA." United States v. Espy, 145 F.3d 1367, 1371 (D.C. Cir. 1998). Instead, plaintiffs rely on the general definition of "agency" in the Administrative Procedure Act (APA). See Pl. Br. 46. They do so even though this Court has recognized that the FOIA definition of "agency" is more expansive than the APA definition. Cotton v. Heyman, 63 F.3d 1115, 1121 (D.C. Cir. 1995); see H.R. Rep. No. 93-876, 93d Cong., 2d Sess. 8, reprinted in 1974 U.S.C.C.A.N. 6267, 6274. If the EOP is not a discrete agency under the FOIA, then surely it is not an "agency" under the APA.

        Once again ignoring the applicable statutory language, plaintiffs instead rely (Pl. Br. 45) on what they term "the government's own representations that the EOP is the 'agency' with authority to direct disposition of the records of EOP components." Yet the bases upon which plaintiffs rest this contention are illusory.

        For instance, the past record disposition schedules that plaintiffs claim identify the EOP as an "agency" actually concern separate EOP components, and merely identify the EOP at the top of a description that includes the Office of Administration and OA's Records Management Unit. See AR-Supp. P70, P238, P251, P279, P300, P313. The Federal Register notices cited by plaintiffs (Pl. Br. 46) do not identify the EOP as a separate agency, but in fact identify specific EOP components. See AR-Supp. P69; 61 Fed. Reg. 34,450 (1996) ("Executive Office of the President, Critical Materials Council"); AR-Supp. P237; 61 Fed. Reg. 4802 (1996) ("Executive Office of the President, Office of Science and Technology Policy"). And the statutes and regulations plaintiffs cite to support their assertion that the EOP is an independent agency actually establish the opposite.4

        Plaintiffs also assert (Pl. Br. 20, 48) that the issue whether EOP is a proper party is of no practical significance because "the relevant component agencies" (OA and USTR) are named as defendants. However, the fact that plaintiffs also named two components of EOP does not mean that the issue is of no consequence. The district court's judgment in this case expressly covers the OA, USTR and the EOP. See JA 92-93. Additional components not named in the complaint, such as the Office of Management and Budget, the Council on Environmental Quality, the Office of Science and Technology Policy, and the Office of National Drug Control Policy, are left to wonder whether they will be subject to discovery and possible injunctive relief for alleged noncompliance with the district court's order.

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III. THE DISTRICT COURT ERRED IN AWARDING INJUNCTIVE RELIEF

        The sole basis for the district court's decision to issue an injunction was its finding that the government "flagrantly violated" its declaratory judgment simply because the Archivist suggested that non-party agencies could continue to apply GRS 20 until the instant appeal is resolved. As we demonstrated in our opening brief (at 49-51), the district court failed to take into account the long-standing rule that a declaratory judgment is merely a statement of rights that leaves an agency free to apply the regulation until an appeal is decided. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155 (1963); Steffel v. Thompson, 415 U.S. 452, 470-71 (1974).

        In response, plaintiffs address arguments we did not make. Not surprisingly, we do not argue (Pl. Br. 48-49) that agencies "are entitled to disregard district court judgments" whenever they disagree with them. Nor do we argue that a district court never has the authority to issue an injunction enforcing its prior declaratory judgment. Rather, we contend that the issuance of a declaratory judgment does not require the government to nullify a government-wide regulation before the appellate courts have an opportunity to review the district court's declaratory judgment.

        Plaintiffs point out (Pl. Br. 49) that each of the cases cited in our opening brief involved a declaratory judgment that a statute is unconstitutional, and they contend that this case should be treated differently because GRS 20 is not a statute that was struck down on constitutional grounds. Yet the cases we cited rest upon the larger principle that a declaratory judgment is simply a statement of rights and not a binding order supplemented by sanctions. See, e.g., Mendoza-Martinez, 372 U.S. at 155. This Court has recognized this principle in the context of agency guidelines implementing the Federal Records Act. Armstrong, 1 F.3d at 1289. Like statutes, agency regulations often have nationwide significance, and a declaratory judgment invalidating a regulation causes uncertainty as to the governing law during the pendency of an appeal. Plaintiffs never explain why a different rule applies when a declaratory judgment concludes that a nationwide regulation is invalid. Moreover, if the Supreme Court has held that the government may properly continue enforcing provisions that have been declared unconstitutional until an appeal is resolved, it would be puzzling that the government cannot apply policies that merely have been declared contrary to statute.

        Plaintiffs also err in their reliance (Pl. Br. 50) on the fact that a declaratory judgment has "the force and effect of a final judgment or decree." See 28 U.S.C. §2201. That statutory phrase merely ensures that a declaratory judgment is "final" for the purpose of appellate review. See ibid. ("Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.") (emphasis supplied). Thus, the Supreme Court has made clear that " even though a declaratory judgment has 'the force and effect of a final judgment, 28 U.S.C. §2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive * * *.'" Steffel, 415 U.S. at 471 (quoting Perez v. Ledesma, 401 U.S. 82, 125-26 (1971) (Brennan, J. concurring); see Armstrong, 1 F.3d at 1289 (quoting Steffel).

        Plaintiffs also err in their contention (Pl. Br. 50) that our argument would "remove any need for the government to seek stays of adverse rulings." As we explained in our opening brief (at 50-51), there is no basis for a stay from a judgment that does not direct the government to do or not do anything. Indeed, this Court would likely have rebuked us if we had sought a stay of a declaratory order not compelling the defendant to do anything. Again, plaintiffs are urging on this Court a strange conception of the law in which declaratory judgments would be indistinguishable from injunctions. Plaintiffs have cited no case in which a party sought and received a stay from a declaratory judgment.

        The rationale urged by plaintiffs and adopted by the district court would leave the government in an impossible situation. Unable to seek a stay from the declaratory judgment, the government would nevertheless have to implement whatever actions the district court "declares" are required, no matter how onerous, or return to the district court to ask that an injunction be entered against it so that a stay pending appeal could be sought. In the case at bar, the government followed the rational course of exploring efforts to comply with the district court's declaratory judgment without causing undue disruption by immediately rescinding a government-wide policy before an alternate policy could be put into place.

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CONCLUSION

        For the foregoing reasons as well as those stated in or opening brief, the October 22, 1997, judgment of the district court, as well as the district court's order of April 9, 1998, should be reversed.

Respectfully Submitted,

OF COUNSEL: FRANK W. HUNGER
Assistant Attorney General
MARK LINDSAY
Chief of Staff and General Counsel STEPHEN W. PRESTON
Office of Administration Deputy Assistant Attorney General
BRUCE OVERTON DOUGLAS N. LETTER
Associate General Counsel (202) 514-3602
Office of the U.S. Trade Representative Appellate Litigation Counsel
MIRIAM NISBET MATTHEW M. COLLETTE
Special Counsel for Information Policy (202) 514-4314
National Archives and Records Administration Attorney, Appellate Staff
Civil Division, Room 9552
Department of Justice
Washington, D.C. 20530-0001

AUGUST 1998

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D.C. CIRCUIT RULE 28(d) CERTIFICATE

        Pursuant to D.C. Circuit Rule 28(d), I hereby certify that this brief does not exceed 6,250 words.

_______________________
MATTHEW M. COLLETTE
Attorney


CERTIFICATE OF SERVICE

        I hereby certify that on this 28th day of August, 1998, I served the foregoing Reply Brief for Appellants upon counsel of record by causing two copies to be mailed postage prepaid to:

Michael Tankersley
Alan Morrison
Public Citizen Litigation Group
1600 20th St., N.W.
Washington, D.C. 20009

_______________________
MATTHEW M. COLLETTE
Attorney

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