Public Citizen v. Carlin
D.D.C. No. 96-2840 PLF
February 25, 1998

 

PLAINTIFFS' MOTION FOR AN ORDER TO SHOW CAUSE AND TO SCHEDULE HEARING ON FURTHER RELIEF PURSUANT TO 28 U.S.C. § 2202

 

I. THE ARCHIVIST'S PUBLISHED STATEMENTS ARE INCONSISTENT WITH THIS COURT'S JUDGMENT THAT GRS 20 IS NULL AND VOID

 

II. THE COURT SHOULD SCHEDULE A HEARING UNDER SECTION 2202 AND DIRECT THE ARCHIVIST TO SHOW CAUSE WHY AN INJUNCTION TO ENFORCE THE DECLARATORY JUDGMENT SHOULD NOT BE ENTERED

 

CONCLUSION

 

ORDER

 

 

 EXHIBITS TO PLAINTIFFS' MOTION FOR AN ORDER TO SHOW CAUSE AND TO SCHEDULE HEARING ON FURTHER RELIEF PURSUANT TO 28 U.S.C. § 2202

 

 1. Electronic Records Work Group, Notice of Meeting, 62 Fed. Reg. 65737-65738 (Dec. 15, 1997).

 

 2. Electronic Records Work Group, Notice of Meeting, 63 Fed. Reg. 2268 (Jan. 14, 1998).

 

 3. John W. Carlin, "Moving Ahead on Electronic Records Challenges," The Record, January, 1998.

 

 4. Electronic Records Work Group: Agency Survey Characterising Current GRS/GRS 20 Usage, February 5, 1998.

 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

PUBLIC CITIZEN, INC., et al.,
 

Plaintiffs,

v                                                                                                                                                                                                                         C.A. No. 96-2840 PLF

JOHN CARLIN, in his official
capacity as Archivist of
the United States, et al.,

 Defendants.

PLAINTIFFS' MOTION FOR AN ORDER TO SHOW CAUSE AND TO SCHEDULE HEARING ON FURTHER RELIEF

PURSUANT TO 28 U.S.C. § 2202

On October 22, 1997, this Court entered a declaratory judgment against the Archivist of the United States declaring that General Records Schedule 20 is null and void because it is inconsistent with 44 U.S.C. § 3303a(d). Despite that Judgment, the Archivist has continued to advise federal agencies that the destruction of federal records in electronic format is "currently authorized" by General Records Schedule 20 ("GRS 20"). In order to enforce the Court's mandate, plaintiffs bring this petition pursuant to 28 U.S.C. § 2202 to request that the Court promptly schedule a hearing and require that the Archivist show cause why and injunction should not be entered to require him to comply with this Court's judgment. More specifically, plaintiffs request that the Court enjoin the Archivist and his agents from advising agencies that General Records Schedule 20 currently authorizes disposition of electronic records, and require the Archivist to publish a notice in the Federal Register correcting his prior statements that GRS 20 currently authorizes such destruction, and instructing agencies that records covered by GRS 20 may not be destroyed unless or until the disposition of the records is authorized by a properly approved records schedule.

I. THE ARCHIVIST'S PUBLISHED STATEMENTS ARE INCONSISTENT WITH THIS COURT'S JUDGMENT
THAT GRS 20 IS NULL AND VOID

 28 U.S.C. § 2202 provides:

 Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.

This provision makes explicit that the Court has power "upon subsequent petition in the case to grant coercive or further declaratory relief in connection with a final declaratory judgment theretofore entered." Shumaker v. Utex Exploration Co., 157 F. Supp. 68 (D. Utah 1957); accord Powell v. McCormack, 395 U.S. 486, 499 (1969) ("A declaratory judgment can then be used as a predicate to further relief, including an injunction.") The district court has jurisdiction to grant injunctive or other relief based on the declaratory judgment even if the declaratory judgment has been appealed. See Horn & Hardart Co. v. National Railroad Passenger Corp., 843 F.2d 546, 548 (D.C. Cir.), cert. denied, 488 U.S. 849 (1988); McCann v. Kerner, 436 F.2d 1342, 1344 (7th Cir. 1971).

Recent public statements by the Archivist of the United States show that such relief is appropriate to enforce this Court's declaration that GRS 20 is contrary to law because the Archivist has continued to make public statements indicating to federal agencies that GRS 20 remains in force:
1.  Since this Court's Order of October 22, 1997, the Archivist has published two notices in the Federal Register announcing meetings of an "Electronic Records Work Group," at the National Archives. See Exhibits 1 and 2. 62 Fed. Reg. 65737-65738 (Dec. 15, 1997), 63 Fed. Reg. 2268 (Jan. 14, 1998). Both notices state that the purpose of this Group is to "focus on identifying workable alternatives to the disposition practices currently authorized under NARA's General Records Schedule 20." Id. (emphasis added).
2.  NARA publishes a newsletter, entitled The Record. The purpose of the newsletter is "to bring public attention to the activities and issues surrounding the agency and promote discussion and dialogue among its constituents." Exhibit 3. The latest issue of The Record begins with a statement from the Archivist in which he states that the Electronic Records Work Group "is focusing on what we at NARA call General Records Schedule 20, which provides guidelines to federal agencies on the disposition of e-mail word-processing files, and other computer generated material." Exhibit 3, John W. Carlin, "Moving Ahead on Electronic Records Challenges," at 4 (emphasis added). The Archivist does not mention that GRS 20 has been declared "null and void," or otherwise indicate that it cannot be relied upon as authority for disposition of electronic records.See footnote 1
   These official, published statements leave readers -- which surely include federal agency records managers -- with the erroneous impression that GRS 20 remains in effect and continues to authorize destruction of electronic records. Of course, many agencies are aware of this Court's ruling setting GRS 20 aside.See footnote 2 The Archivist, however, is specifically charged by statute with providing guidance to agencies on proper records disposition practices. 44 U.S.C. § 2904(a). Consequently, it is not surprising that the Archivist's statements indicating that GRS 20 currently authorizes disposition or electronic records have encouraged agencies to act as if this Court's judgment was never entered.

   Indeed, NARA's Internet Web page reports that a survey of 18 cabinet level departments was conducted for the Electronic Records Work Group from December 8-16, 1997, in which interviewers asked, among other things, "Does your agency implement GRS 20 by providing a copy to records liaisons or other staff, or do you incorporate the items individually into your agency manual" Exhibit 4. The responses indicate that all the agencies surveyed had implemented GRS 20 in one way or another. Id. at 1. There is no indication, however, that agencies were advised that they could no longer rely on GRS 20. To the contrary, participants who inquired about what to do with electronic records in the interim were told "that this advice was at DoJ and would not be released until a decision was made regarding appeal." Id. at 2.
   Moreover, although almost four months have passed since the GRS 20 was declared to be void, the Archivist has not taken any steps to prevent disposition of the electronic records covered by GRS 20, or to authorize the disposition of such records through other means. Records cannot be disposed of unless their disposal is authorized by an individual agency or general records schedule. 44 U.S.C. § 3314; 36 C.F.R. § 1234.34(a). Consequently, agencies cannot lawfully destroy the records covered by GRS 20 unless or until there is a properly approved records schedule authorizing their disposition. This Court's opinion observed that, with GRS 20 set aside, the Records Disposal Act still authorized the government to properly schedule the electronic records described in GRS 20 by (i) having agencies submit individual agency schedules to the Archivist for approval, or (ii) by promulgating general schedules that are narrower than GRS 20 because they cover electronic records that document housekeeping functions. Opinion of October 22, 1997 at 34-35. To date, the Archivist has not promulgated any such general schedules and it appears that only two individual agency schedules for the materials formerly covered by GRS 20 have been noticed for public comment. See 44 U.S.C. § 3303a(a) (requiring that notice of proposed individual agency schedules be published in the Federal Register).
   In short, the Archivist's published statements that GRS 20 currently authorizes disposition of electronic records are inconsistent with this Court's judgment, a judgment that has never been stayed and clearly binds the Archivist.See footnote 3 The National Archives has informed us that there has been "no official guidance provided by NARA to federal agencies on this subject." But the lack of any "official" guidance four months after the decision only reinforces the impression that the Archivist is acting, and encouraging agencies to act, as if GRS 20 is valid. Moreover, the statements identified above, published in the Federal Register notices and the Archives' official newsletter, are certainly "official" statements of the Archivist and show that he has made public, widely disseminated statements encouraging agencies to believe that GRS 20 is still valid. Not surprisingly, it appears that most federal agencies, which are directed by statute to take direction from the Archivist on these issues, have responded by continuing to rely on GRS 20 rather than taking steps to retain their records until the records are properly authorized for disposition in accordance with the Records Disposal Act.

II. THE COURT SHOULD SCHEDULE A HEARING UNDER SECTION 2202 AND DIRECT THE ARCHIVIST TO SHOW CAUSE
WHY AN INJUNCTION TO ENFORCE THE
DECLARATORY JUDGMENT SHOULD NOT BE ENTERED

   Further relief to enforce this Court's declaratory ruling is warranted because the Archivist is defying the judgment, or is operating under a "misapprehension" concerning the Court's judgment. Courts have repeatedly ordered coercive relief in the form of an injunction or mandamus in such circumstances.
   For example, just a few months ago, in Northern States Power v. United States Department of Energy, 128 F.3d 754 (D.C. Cir. 1997), the Court of Appeals found that mandamus was warranted to enforce its mandate when an agency was taking action contrary to its ruling. In a prior case, the Court of Appeals had held that the Nuclear Waste Policy Act imposes on the Department of Education an unconditional obligation to begin disposing of high-level radioactive waste and spent nuclear fuel by January 31, 1998. After the Court's ruling, however, the Department announced that it would not accept waste by the deadline. The Court of Appeals declined to compel the Department to accept waste by the statutory deadline because the petitioners had a contractual remedy. Id. at 758-59. But the Court found that supplementary relief to enforce the prior mandate was appropriate because the Department's position on these contractual remedies was inconsistent with the Court of Appeals' decision, and mandamus was therefore appropriate "to correct the Department misapprehension of our prior ruling." Id. at 760. Accordingly, the Court of Appeals issued a writ of mandamus forbidding the Department from implementing any interpretation of the contract at issue that was inconsistent with the Court's prior ruling.
   Section 2202 authorizes this Court to take similar action to enforce the declaratory judgment in this case. For example, in Securities Industry Assoc. v. Board of Governors of the Federal Reserve System, 628 F. Supp. 1438 (D.D.C. 1986), the Court entered a permanent injunction to require a recalcitrant defendant to comply with its declaratory judgment ruling. After the Court entered a declaratory judgment that certain sales by the defendant bank were unlawful under the Glass-Steagal Act, the defendant announced that it intended to continue the sales while it appealed the ruling. Judge Joyce Hens Green, citing 28 U.S.C. § 2202, found that a permanent injunction against the defendant engaging in sales was appropriate supplemental relief to enforce the prior declaratory judgment. Similarly, in Vermont Structural Slate Co. v. Tatcko Brothers Slate Co., 253 F.2d 29 (2d Cir. 1958), the district court entered declaratory judgment that a patent was invalid, but the holder of the invalid patent continued to insist on its validity. The Court of Appeals found that, under these circumstances, it was appropriate for the district court to enter an injunction restraining the unsuccessful patentee from directly or indirectly making claims based on the patent that interfered with the plaintiff's business.
   Appropriate relief is warranted here to correct the Archivist's statements indicating that GRS 20 "currently" authorizes disposition of federal agency records, and to prevent additional statements in the future. Accordingly, plaintiffs urge that the Archivist and his agents be enjoined from making statements advising federal agencies that GRS 20 currently authorizes the disposition of electronic records, and that the Archivist be required to publish a notice in the Federal Register advising interested parties that GRS 20 has been declared null and void and does not currently provide authority for the disposition of electronic federal records under the Records Disposal Act, and, therefore, records covered by GRS 20 may not be destroyed unless or until the disposition of the records is authorized by a properly approved records schedule.
   As a predicate to entering such relief under Section 2202, the Court must give notice and hold a hearing on the appropriateness of supplemental relief. See Insurance Services of Beaufort, Inc. v. Aetna Cas. and Sur.Co., 966 F.2d 847, 852 (4th Cir. 1992). We urge that the Court promptly schedule a hearing and issue an order directing the Archivist to show cause why supplemental relief to enforce the declaratory judgment should not be granted. We also suggest that the Court direct the Archivist to file any memoranda, evidence or legal authorities in support of his response to the motion to show cause no later than 10 days before the date scheduled for the hearing under Section 2202. If it appears from the material presented at the hearing that other types of coercive relief are appropriate to enforce the declaratory judgment, the Court may consider how to fashion the relief at that time.

CONCLUSION

   The Archivist's official published statements concerning GRS 20 since this Court's October 22, 1997 judgment encourage continued reliance on that Schedule to dispose of records and are inconsistent with this Court's judgment that the Schedule is "null and void." Accordingly, this Court should promptly schedule a hearing on supplemental relief to enforce the declaratory judgment under 28 U.S.C. § 2202, and direct the Archivist to show cause why an injunction should not be entered to enforce the judgment.
 

 Respectfully submitted,

 Michael E. Tankersley
 (D.C. Bar No. 411978)
 Alan B. Morrison
 (D.C. Bar No. 073114)

 Public Citizen Litigation Group
 1600 20th Street, NW
 Washington, DC 20009
 (202) 588-1000

February 25, 1998           Attorneys for Plaintiffs


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

PUBLIC CITIZEN, INC., et al.,

Plaintiffs,

v                                                                                                                                                                                          C.A. No. 96-2840 PLF

JOHN CARLIN, in his official
capacity as Archivist of
the United States, et al.,

Defendants.

ORDER

 

   Upon consideration of Plaintiffs' Motion For An Order To Show Cause Order and to Schedule Hearing On Further Relief Pursuant To 28 U.S.C. § 2202, it appearing that the Archivist has published some statements that are inconsistent with this Court's Judgment of October 22, 1997, which declared that General Records Schedule 20 is null and void because it is contrary to 44 U.S.C. § 3303a, it is hereby
   ORDERED that plaintiffs' Motion is granted; and it is further
   ORDERED that on ________________, 1998 at _______ a.m./p.m., this Court shall hold a hearing pursuant to 28 U.S.C. § 2202 to determine whether further relief should be entered based on the Court's Judgement of October 22, 1997; and it is further

   ORDERED that the Archivist is hereby directed to show cause why such relief should not be granted and shall file any memoranda, evidence or legal authorities in support of his position by ______________, 1998.

 ____________________________
 PAUL L. FRIEDMAN
 UNITED STATES DISTRICT JUDGE


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

PUBLIC CITIZEN, INC., et al.,

Plaintiffs,

vC.A. No. 96-2840 PLF

JOHN CARLIN, in his official
capacity as Archivist of
the United States, et al
Defendants.

EXHIBITS TO PLAINTIFFS' MOTION FOR AN ORDER TO SHOW CAUSE AND TO SCHEDULE HEARING ON FURTHER RELIEF
PURSUANT TO 28 U.S.C. ? 2202

1.   Electronic Records Work Group, Notice of Meeting, 62 Fed. Reg. 65737-65738 (Dec. 15, 1997).
[Federal Register: December 15, 1997 (Volume 62, Number 240)]
[Notices]
[Page 65737-65738]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de97-112]

----------------------------------------------------------------

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
 

Electronic Records Work Group; Notice of Meeting

AGENCY: National Archives and Records Administration (NARA).

ACTION: Notice of meeting.
-----------------------------------------------------------------------
 

SUMMARY: NARA will hold the initial meeting of the Electronic Records
Work Group on December 19, 1997, to discuss issues related to the
operation of the Work Group. The public is invited to observe the
meeting; however, seating is limited. The Electronic Records Work Group
will focus on identifying workable alternatives to the disposition
practices currently authorized under NARA's General Records Schedule 20
for Electronic Records. Members of the Work Group are experts drawn
from NARA and other Federal agencies. The Work Group will solicit
technical assistance on specific issues from experts with practical
experience in the private sector and the archives of other governments.
Additional information about the Electronic Records Work Group is
available on NARA's GRS 20 Internet Web page at records/grs20/>.

DATES: The meeting is scheduled for December 19, 1997, from 11 a.m-
12:30 p.m.

ADDRESSES: The meeting will be held in Lecture Room A, National
Archives at College Park, 8601 Adelphi Rd., College Park, MD 20740-
6001.

FOR FURTHER INFORMATION CONTACT: Jean Cooke at 301-713-7110, extension
228.

Dated: December 12, 1997.
John W. Carlin,
Archivist of the United States.
[FR Doc. 97-32903 Filed 12-12-97; 12:17 pm]
BILLING CODE 7515-01-P

2.  Electronic Records Work Group, Notice of Meeting, 63 Fed. Reg. 2268 (Jan. 14, 1998).

[Federal Register: January 14, 1998 (Volume 63, Number 9)]

[Notices]
[Page 2268]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja98-119]

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
 

Electronic Records Work Group; Notice of Meeting

AGENCY: National Archives and Records Administration (NARA).

ACTION: Notice of meeting.

-----------------------------------------------------------------------

SUMMARY: NARA will hold a public meeting of the Electronic Records Work
Group on January 29, 1998, to obtain further comments on issues
relating to NARA's General Records Schedule (GRS) 20 for Electronic
Records. The Electronic Records Work Group, with members drawn from
NARA and other Federal agencies, has been charged with identifying
workable alternatives to the disposition practices currently authorized
under GRS 20. Additional information about the Electronic Records Work
Group is available on NARA's GRS 20 Internet Web page at www.nara.gov/records/grs20/>.

DATES: The public meeting will be held on January 29, 1998, from 9--11
a.m. Persons who wish to provide formal comments at the meeting should
notify NARA by telephone (301-713-6677, ext. 266) or fax (301-713-6850)
or e-mail (grs20@arch2.nara.gov) no later than noon January 27, 1998.

ADDRESSES: The public meeting will be held in the National Archives
Theater, National Archives Building, 7th and Pennsylvania Ave., NW,
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Lisa Haralampus at 301-713-6677,
extension 266.

SUPPLEMENTARY INFORMATION: In the December 24, 1997, Federal Register

(62 FR 67098) NARA published a list of preliminary issues to be
addressed by the Electronic Records Work Group and asked for public
comment by January 9, 1998. At the public meeting on January 29, 1998,
NARA will seek additional comments on these issues and suggestions for
other issues and alternatives to the current GRS 20 that the Work Group
should consider.
Persons who wish to provide formal comments or remarks to the Work
Group may be limited to 10 minutes each to ensure that all speakers are
heard. Speakers will be notified prior to the meeting if they will have
more than 10 minutes to present their comments. If time permits, there
also will be an opportunity for informal comment after the formal
comments.
Comments will be considered the views of the individual presenting
them unless that person identifies the comments as the views of an
agency or organization.
Following the public meeting, the Electronic Records Work Group
will meet in a working session that is not open to the public.
Summaries of the public meeting and the working session will be posted
on NARA's GRS 20 Internet Web page and available in paper form from the
contact person named in this notice.

Dated: January 9, 1998.
John W. Carlin,
Archivist of the United States.
[FR Doc. 98-954 Filed 1-13-98; 8:45 am]
BILLING CODE 7515-01-P

3.  John W. Carlin, "Moving Ahead on Electronic Records Challenges," The Record, January, 1998.[not online]

4.  Electronic Records Work Group: Agency Survey Characterising Current GRS/GRS 20 Usage, February 5, 1998.
(http://www.nara.gov/records/grs20/survey.html)


Footnote: 1 Ironically, although he does not mention the Court's decision or plaintiffs' longstanding objections to GRS 20, the Archivist presents the problems that led this Court to declare GRS 20 as his own view, even as he is challenging the Court's decision on
appeal:
     In my view, GRS-20 needs changing. General records schedules definitely have their place, but they should be applied to the disposition of routine administrative "housekeeping" records, not to programmatic records. Moreover, while records can be transferred from one medium to another, this should not be done carte blanche. Key contextual information must be preserved in the process. The retention scheduling of records should be record-oriented rather than medium oriented.
Id.


Footnote: 2 Apart from reports in the conventional press, the National Archives has made copies of the Court's decision available at its Internet site (http:///www.nara.gov /records/grs20).


Footnote: 3 Defendants filed their notice of appeal on December 19, 1997, and plaintiffs' motion for summary affirmance of this Court's judgment is currently pending before the Court of Appeals. See D.C. Cir. Appeal No. 97-5356.