UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
C.A. No. 96-2840 PLF

PUBLIC CITIZEN, INC., et al.,
   Plaintiffs,
    v.
JOHN CARLIN, in his official
capacity as Archivist of
the United States, et al.,
   Defendants.

PLAINTIFFS' OPPOSITION TO DEFENDANT ARCHIVIST'S MOTION FOR A PARTIAL STAY PENDING APPEAL AND/OR MODIFICATION OF THE COURT'S INJUNCTION OF APRIL 9, 1998.

 

            Michael E. Tankersley
            Alan B. Morrison
            Public Citizen Litigation Group
            1600 20th Street, NW
            Washington, DC 20009
            (202) 588-1000

September 28, 1998        Attorneys for Plaintiffs


TABLE OF CONTENTS




Introduction and Summary of Argument

  Although the Executive Branch is entitled to “a certain degree of breathing space in its implementation of the law,” courts “cannot countenance maneuvering that merely maintains a facade of good faith compliance with the law while actually achieving a result forbidden by court order.” Public Citizen Health Research Group v. Brock, 823 F.2d 626, 627 (D.C. Cir. 1987). We submit that the Archivist's conduct in this case reflects procrastination, stalling, and a pretense of good faith in order to achieve a forbidden result, namely continued reliance on an agency rule, GRS 20, that this Court declared unlawful eleven months ago. The Archivist's Motion for a Partial Stay or Modification of this Court's April 9, 1998 Order asks that this Court not only accept the Archivist's eleven months of reliance on GRS 20 in flagrant disregard of the Court's ruling, but that the Court affirmatively authorize the Archivist to continue to ignore the Court's ruling pending appeal. This request should be denied as untimely, improper, and unjustified.
  The Archivist has made a mockery of the April 9, 1998 Order by (i) inexcusably failing to fulfill his representation that he would implement new disposition practices by September 30; and (ii) treating the April 9, 1998 Order as tantamount to a stay of the judgment setting aside GRS 20, even though this Court stated that it would not stay that judgment. Although complying with this Court's October 22, 1997 decision is not difficult, the record shows that Archivist has squandered the last eleven months: he is not prepared to schedule records that were authorized for disposition by GRS 20; he cannot fulfill his March 1998 representation that he would have a replacement for GRS 20 in place by September 30; and he is not even prepared to say when, if ever, he will even propose such a replacement. Instead, the Archivist now asks this Court save him from the consequences of his own failure to take the actionsoutlined by the Court in October 1997, by entering an order that would effectively nullify the Court's decision on the merits so long as an appeal is pending. The best way to respond to the situation that the Archivist has created is not to grant a stay that would license further delay by the Archivist, but to leave the Court's orders in place so that the Archivist will have no excuse for failing to take action in accordance with the law.
  The Archivist's assertion that, unless stayed, the Court's injunction will impose “irreparable injury” after September 30, 1998 is vastly overblown. The only provision of the April 9, 1998 injunction that currently has any effect is the one that enjoins the Archivist from issuing “statements of any kind that General Records Schedule 20 currently authorizes the disposition of electronic records.” Public Citizen v. Carlin, 2 F.Supp.2d. 18, 22 (D.D.C. 1998). Nothing in the Court's injunction prohibits the Archivist from making any other statement, or taking any other action. The injunction does not impose a “no delete” rule. The Archivist's complaint here arises because the governing statute, not the Court's injunction, provides that electronic records may not be lawfully alienated or destroyed if they have not been scheduled. 44 U.S.C. § 3314. The Court, however, cannot alter the governing statute or authorize the Archivist to ignore it. The Order that the Archivist has asked this Court to enter, however, would authorize him to encourage agencies to destroy electronic records, regardless of their historical value, without scheduling them. There is no legal authority or equitable justification for this Court to grant such relief.
  Our Opposition begins with a review of the Archivist's conduct during the last eleven months, and then is divided into three arguments. First, the Archivist's motion is inexcusably late and untimely. Second, the Archivist's request for “modification” should be denied on the merits because it is not a request for relief from the prior judgment, but a request that the Courtissue an entirely new order that does not implement or enforce the October 22, 1997 judgment. The Archivist requests that this Court authorize him to tell agencies that they may destroy their electronic records, even if the records are valuable and are not scheduled for disposition. Such an order would not only have the effect of staying both this Court's prior judgments of October 22, 1997 and April 9, 1998, but would purport to authorize all types of records disposition practices that are not before the Court. There is simply no basis for such a sweeping order.
  Third, to the extent that the Archivist's motion seeks a stay of this Court's prior judgment, it should be denied because the four criteria for a stay do not justify such extraordinary relief. The Archivist has failed to demonstrate any likelihood that this Court's decision will be overturned on the merits and, in fact, he has endorsed several of the conclusions that were the basis for this Court's October 22, 1997 decision. Prohibiting the Archivist from telling agencies that they may rely on GRS 20 does not impose an “irreparable injury,” and the crisis alleged by the Archivist results from his own failure to schedule records. Most importantly, the stay the Archivist seeks should be denied because it would injure plaintiffs and other members of the public by endorsing the destruction of electronic records -- many of which are historically valuable -- without regard to whether the destruction is lawful.
  Consequently, we urge the Court to deny the Archivist's motion in its entirety. If the Court concludes that some relief is appropriate because of the Archivist's failure to fulfill his prior representations that he would take action by September 30, we urge that the relief be of limited duration, and that it be conditioned on the Archivist taking action forthwith to ensure that the objectives of the records laws are satisfied by scheduling records and preserving those records that have long-term value.
  Specifically, if the Court grants any stay of its injunction, the Court should condition the stay on the Archivist issuing a directive within three days that instructs agencies (i) that they must promptly prepare and submit schedules for any unscheduled electronic records previously covered by GRS 20; and (ii) that electronic records that are of potentially permanent value should not be destroyed unless and until they have been properly scheduled. If the Court's order authorizes the Archivist to state that agencies are permitted to follow their “present disposition practices for electronic records” (which we believe it should not), the order should state that agencies may only follow such practices if they are awaiting approval of a disposition schedule for those records, and that the Court's order does not constitute adjudication of the propriety of the agencies' present practices. See infra at 21.




BACKGROUND

  A brief review of this Court's opinions and the Archivist's conduct over the past eleven months reveals two salient points. First, the Archivist's argument that he should be afforded unlimited authorization to tell agencies to continue to follow their present disposition practices has already been considered and rejected by this Court. Second, the Archivist has engaged in a concerted effort not to do what this Court's opinions stated that he should do to comply with the records statutes.
   1.  In its October 22, 1997 opinion ruling that GRS 20 is inconsistent with the governing statute, this Court directly addressed the Archivist's contention that GRS 20 should not be struck down because “many agencies do not have the capability at this time to preserve electronic records on electronic recordkeeping systems.” Public Citizen v. Carlin, 2 F.Supp.2d. 1, 17 (D.D.C. 1997). The Court stated that it “is confident that the Archivist will be able toefficiently dispose of electronic records within the structure provided by existing law,” because the law provides two mechanisms for authorizing the disposition records held by agencies:
    First, federal agencies can submit to the Archivist individual agency schedules covering electronic records, which then would be reviewed by the Archivist to ensure that the scheduled electronic records will not possess administrative, legal, research or other value after the proposed specified retention period. 44 U.S.C. § 3303a(a). Second, the Archivist has authority to promulgate general schedules covering electronic records that document housekeeping functions of federal agencies. 44 U.S.C. § 3303a(d). Id.
  Eleven months later, the Archivist has done neither. The second mechanism, promulgation of a new general schedule limited to administrative electronic records, is a remedy that is entirely within the Archivist's control. However, the Archivist has not proposed such a schedule, much less promulgated a final version. Indeed, the Archivist now says that NARA will not even publish a proposed schedule until March 15, 1999. See Defs' Exhibit B, Tab 4, pages 3-4.
  With respect to the first alternative, the Archivist says that he agrees that “Agencies must schedule their program and unique administrative records in all formats,” but he has not encouraged agencies to do so, and is not prepared to say when he will do so. Indeed, the Archivist has not even scheduled NARA's own electronic records. NARA has electronic mail and word processing systems and relied on GRS 20 for disposal of those records, but the Archivist has not published a new disposition schedule for these records since GRS 20 was declared null and void. See Plaintiffs' Exhibit P1. While a few agencies have submitted schedules to cover their GRS 20 records, most have followed NARA's example and have not proposed schedules -- encouraged by the Archivist's pronouncements that agencies may continue to rely on GRS 20 despite this Court's judgment declaring it null and void.
   2.  In March and April, 1998, at the end of the Archivist's submissions opposing our request for an injunction that would prevent him from telling agencies to continue to rely on GRS 20, the Archivist asserted that if an injunction were granted, he would be entitled to a stay.See footnote 1 This Court rejected the Archivist's request for a stay, and rejected the language of the Archivist's proposed notice because it “essentially gives the government unlimited authorization to continue to ignore the Court's Order and specifies no time frame within which the Archivist must implement an alternative to GRS-20.” Public Citizen v. Carlin, 2 F.Supp.2d at 21. The Court adopted a September 30 deadline based on the Archivist's representation that the Deputy Archivist and his Work Group were working on alternatives to GRS-20 that NARA would be prepared to implement by October, 1998. Id.; Declaration of Lewis J. Bellardo at 4 (March 12, 1998). Moreover, the Court indicated that agencies should be scheduling their records by citing the paragraph of the NARA Bulletin that “suggest[s] that individual agencies develop their own individual schedules for record disposition, as required by the Federal Records Act,” as the appropriate message for the Archivist to send to agencies. Id.
  The Archivist's present motion, however, seeks the “unlimited authorization to continue to ignore the Court's Order” that this Court denied in April. The Archivist has not fulfilled his representation that NARA would implement alternatives by October, and he will not say when, if ever, he will do so. Moreover, since the April 9, 1998 Order, the Archivist has not encouraged agencies to submit schedules, as the Court anticipated, and the Archivist is not proposing to encourage them to do so now.
   3.  In an April 30, 1998 Order denying plaintiffs' motion for reconsideration of language in the Notice set forth in the April 9, 1998 injunction, this Court admonished that “[a]ny attempt to imply that the Court's Order authorizes actions by entities that are not parties to the case is simply incorrect.” We believe that the record shows that the Archivist and the agencies he advises have not heeded that admonition. To the contrary, the Deputy Archivist's Report shows that NARA and the agencies with which it works interpreted the April 9, 1998 Order as granting “authority to dispose of electronic source records” through September 30, even if there was no valid authorization under the statute for disposition. See Defs' Exhibit B, Tab 4, Appendix B, Analysis of Comments Received on the Draft Report at App. B-3.
  Indeed, the Archivist's Motion makes clear that, although the Court denied his request for a stay, the Archivist has treated the April 9, 1998 Order as the equivalent of a stay of the judgment nullifying GRS 20, and that he is now seeking an Order in which the Court would endorse the instructions in GRS 20 until the appeal is concluded. According to the Deputy Archivist, the Archivist seeks authority to instruct agencies that they “may continue to delete records on their 'live' office automation systems, including electronic mail and word processing applications, after a recordkeeping copy is produced,” despite the October 22, 1997 declaratory judgment and the September 30 deadline in the April 9, 1998 Order. See Defs' Exhibit B at page 7 ¶ 12. This instruction is precisely the instruction in items 13 and 14 of GRS 20 that the Court found to be unlawful. See Public Citizen v. Carlin, 2 F.Supp.2d at 3.




ARGUMENT


I. THE ARCHIVIST'S MOTION IS UNTIMELY

We believe that the Archivist's motion should be denied on the merits, but we cannot help noting that the Archivist's September 24 motion is outrageously untimely, and that hiscounsels have no excuse for failing to present the motion weeks, if not months, ago. Counsels' failure to file a motion that could have been brought long ago, instead of just six days before September 30, is prejudicial to the Court and to plaintiffs. The untimeliness of the motion alone is sufficient grounds to deny equitable relief, or to direct counsel to show cause to justify their conduct.
  When the Archivist filed his appeal of this Court's April 9, 1998 injunction in May 1998, he did not ask the Court of Appeals to schedule the appeal so that the appeal would be decided before the September 30 deadline set forth in the Order. Instead, the Archivist requested that the appeal be heard on October 20, 1998 -- thereby guaranteeing that the appeal would not be resolved until several weeks or, more likely, months, after the September 30 date. See Plaintiffs' Exhibit P-2, Archivist's Motion to Consolidate Appeals and Maintain Existing Briefing and Argument Schedule (May 26, 1998). After urging the Court of Appeals to take five months or more to consider the appeal, the Archivist's decision to move for a stay pending appeal on just six days notice is indefensible.
  The Archivist's counsel offers no credible explanation of why this motion for stay was not brought in May, June, July, or August, and the excuses that appear in the Archivist's papers are either pretextual or insubstantial.
  First, counsel “represents” that “the present motions were filed as expeditiously as possible once the status of the underlying facts was confirmed.” Defendant Archivist's Motion to Schedule a Hearing ¶ 4. The representation is not explained, supported, or credible. As early as July 22, 1998, counsel for the Archivist reported that it was the Archivist's position that implementation of the plans NARA was developing “will require additional significant time beyond that [September 30] deadline,” but counsel brought no motion for relief from thedeadline. See Defendants' Status Report at 4 (July 22, 1998). Furthermore, the Report of the Archivist's Work Group shows that, when the Group reviewed comments submitted by agencies in August, it concluded that, even if NARA's proposals were accepted, the Archivist would have to seek “modification of the April 9 Order” if he wanted to provide authority for agencies to destroy records after September 30. See Defs' Exhibit B, Tab 4, Appendix B, Analysis of Comments Received on the Draft Report at App. B-5. This document is dated September 14, but the review of comments reported in the document was conducted in late August. Id. There is no explanation for why the Archivist waited until September 24 to seek such a modification.
  Second, the Archivist's counsel suggests that the motion is being brought at the last minute because OMB recently “advised the Archivist” that further inter-governmental review of the Archivist's proposals “is necessary” before they are finalized. Defs' Memorandum in Support of Defendant Archivist's Motion for a Partial State Pending Appeal at 5. This excuse appears to be a pretext, and it has no substance. As noted above, the Deputy Archivist had previously signed a report which concluded that, even if the proposals were finalized on September 30, the Archivist would need to seek modification. In addition, OMB did not “advise” that intergovernmental review is “necessary.” OMB's letter shows that it made a “request” for an additional six months of review. See Defs' Exhibit B, Tab 5, September 21, 1998 Letter from the Office of Management and Budget. There is no legal requirement or mandate for such review. The Archivist acquiesced in this request voluntarily -- even though it is incompatible with his representation to this Court that he would implement new guidelines by September 30.
  Moreover, the assertion that additional intergovernmental review is necessary is not credible. The proposals have already undergone at least three rounds of intergovernmental review, including two rounds in June and July in which OMB and every other federal agency was permitted to participate. See footnote 2 The Archivist's assertion that a fourth, five month-long, round of review is “necessary” because agencies' comments were previously submitted to the Deputy Archivist's Work Group, rather than directly to him, is unpersuasive. The Archivist is using OMB and intergovernmental review as a pretext or scapegoat for his own failure or unwillingness to fulfill his representations that he would act no later than September 30.
  Finally, the Archivist asserts that the motion is being brought now because the Archivist has just realized that it is necessary to consider the “Y2K problem” before issuing instructions on scheduling records. Defs' Memorandum at 6. Of all the government's excuses, this one is the most fanciful. There is no explanation anywhere in the government's papers of why the Y2K problem interferes with scheduling records; nor is there any claim that the agency records officers and archivists responsible for scheduling records are being detailed to examine agency computer codes for Y2K compliance.
  Moreover, the Archivist was certainly aware of the Y2K problem in March, when he represented that he would act by September 30, and the Deputy Archivist, NARA staff, and all of the government staff who participated in drafting and commenting on the proposals were aware of the Y2K problem. The Archivist's claim that he will not act by September 30, anddid not file his motion earlier, because the Y2K problem unexpectedly emerged as an issue in the last few days, is simply not credible.
  In short, the record shows that the Archivist has failed to fulfill his representations, is unwilling to act by September 30, and has no justification for not filing his present motion weeks, if not months, earlier. The Court should not countenance such gamesmanship.


II. THE ARCHIVIST'S MOTION FOR MODIFICATION SHOULD BE DENIED.

The Archivist's argument that his motion be considered as a request for modification of the April 9, 1998 injunction, see Defs' Memorandum at 14-16, must be denied because the Archivist's appeal has deprived this Court of jurisdiction to modify that judgment, and because the Order that the Archivist requests is not relief from the April 9, 1998 judgment, but an entirely new order that goes beyond the original judgment in this case. Fed. R. Civ. P. 60(b) does not authorize the type of expansive order that the Archivist seeks, and there is certainly no equitable justification for granting such relief.
  First, the Archivist's appeal of the April 9, 1998 judgment deprives this Court of jurisdiction to grant a motion for modification of that judgment under Fed. R. Civ. P. 60(b) while the appeal is pending. “It is well-established that the District Court is without jurisdiction to alter a judgment of its own while an appeal therefrom is ongoing.” Deering Milliken, Inc. v. FTC, 647 F.2d 1124, 1128 (D.C. Cir.), cert. denied, 439 U.S. 958 (1978); accord Smith v. Polin, 194 F.2d 349, 350 (D.C. Cir. 1952) (district court cannot grant motion for new trial where judgment is already on appeal).See footnote 3 The appeal divested this Court ofjurisdiction over the judgment and transferred it to the Court of Appeals. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).
  As noted above, the Archivist could have asked the Court of Appeals to decide the appeal before September 30 when he filed his challenge to the April 9, 1998 injunction in May, but he did not. His failure to do so leaves this Court without jurisdiction to grant the relief he seeks now. Where a party seeks relief from a judgment while the case is still pending before the Court of Appeals, the law of this Circuit provides that the district court may not grant the motion but, at most, may indicate that it would be inclined to grant relief if it had jurisdiction, and the movant must then move the Court of Appeals to remand the case to give the district court jurisdiction. See Smith v. Polin, 194 F.2d at 350; United States v. Powe, 627 F.2d 1251 (D.C. Cir. 1980). Thus, even if the Archivist's request for relief under Rule 60(b) had merit, this Court could not grant his request unless and until the Archivist obtained a remand from the Court of Appeals, which certainly precludes the Archivist's request that this Court modify the judgment by September 30.
  Second, apart from this jurisdictional barrier, the Order that the Archivist requests is not relief from an existing order under Fed. R. Civ. P. 60(b), but an amendment or an entirely new Order that is not authorized by Rule 60(b) or any other provision. The April 9, 1998 injunction was issued pursuant to this Court's authority under 28 U.S.C. § 2202 to enforce the declaratory judgment striking down GRS 20. The principal provision of the injunction, and the only provision that still restricts the Archivist's conduct, precludes him from making statements that GRS “currently authorizes disposition of records.” The Archivist's proposed order for modification, however, does not implement the original declaratory judgment. Instead,the proposed order would authorize the Archivist to endorse present disposition practices of non-party agencies for electronic records, without qualification.
  Rule 60(b) authorizes the court to “relieve a party” from a final judgment, i.e., vacate a judgment that should not be permitted to have continuing effect. The order proposed by the Archivist, however, would be a new judgment that authorizes an entirely new notice without the September 30 date, in which the Court would authorize the Archivist to represent that all present disposition practices “may continue through the pendency of the appeal, or the approval of agency schedules (Requests for Records Disposition Authority), whichever is earlier.” Defs' Memorandum at 16. This request might be characterized as an amendment of the April 9, 1998 judgment, but amendment is not available (even if there were no appeal) because Fed. R. Civ. P. 59(e) requires that motions for amendment be brought within 10 days. The Archivist is actually seeking a new order in which this Court would endorse statements by the Archivist approving records practices that are not before the Court. We know of no authorization for the Archivist to request such judicial imprimaturs, and the Archivist's proposed order would certainly do far more than Rule 60(b) authorizes.
  Finally, even if this Court had jurisdiction, and even if Rule 60(b) authorized the order the Archivist requests, there is no equitable justification for this Court to issue an order in which the Court authorizes the Archivist to state that agencies may continue to follow their current practices for destroying electronic records indefinitely -- regardless of whether those practices are lawful or not; regardless of whether the records that would be destroyed are valuable or trivial; and regardless of whether the agency is capable of preserving its valuableelectronic records.See footnote 4 Nothing in the Archivist's papers even remotely provides a justification for such a sweeping order.


III. THE ARCHIVIST'S MOTION DOES NOT MEET THE REQUIREMENTS FOR A STAY.

  As noted above, the only provision of the April 9, 1998 injunction that affects the Archivist's conduct today, or after September 30, is the injunction's prohibition on the Archivist making any official statement stating that GRS 20 “currently authorizes disposition of electronic records.” Public Citizen v. Carlin, 2 F. Supp.2d at 22. The Archivist's request for a stay only makes sense insofar as he requests that this prohibition be suspended so that he can advise agencies that they may continue to rely on GRS 20, despite the declaratory judgment declaring it null and void.See footnote 5 Accordingly, the relief the Archivist seeks would not only stay the April 9, 1998 injunction, but would effectively stay the original declaratory judgment pending appeal.
  This Court considered whether to stay the declaratory ruling in April when the government requested a stay in its post-hearing filing, and ruled that it would not stay that Order. Id. at 19-20. There is even less justification for a stay now, over five months later, because the Archivist has no excuse for continuing to encourage agencies to rely on GRS 20,instead of encouraging them to submit proper schedules for these records. Indeed, the “harm” imposed by not granting a stay is minimal and entirely of the Archivist's own creation, and the other factors to be considered in evaluating an application for a stay show that this Court's judgment should not be stayed.


A. Likelihood of Success on the Merits.

A stay is an extraordinary remedy, and it is not justified unless the appellant seeking to suspend the considered judgment of the district court demonstrates that there is a substantial likelihood that the judgment will be reversed. However, neither the Archivist's current motion nor his submissions in March offer any substantial argument that GRS 20 will be upheld by the Court of Appeals as valid. Indeed, no such showing can be made. This Court found that GRS 20 was contrary to law for three independent reasons: (1) it is not limited to “administrative” records; (2) it is not supported by any determination that the records it covers lack value to warrant continued preservation; and (3) it fails to identify “specified periods of time” for retention of the records scheduled. To prevail on appeal, the Archivist must demonstrate that all three of this Court 's conclusions are wrong.
  Any assertion that the Archivist has a substantial chance of convincing the Court of Appeals that this Court is wrong on all three issues is belied by the fact that, in the months following this Court's decision, the Archivist has stated that he agrees with this Court's ruling on at least two of the three. First, in several official statements, the most recent on September 21, 1998, the Archivist declared that he agrees that general records schedules should not beused for program records, but should be limited to administrative records.See footnote 6 Second, in a proceeding to revise General Schedules unrelated to GRS 20, the Archivist has declared that he now “has determined that indefinite retention periods,” such as “destroy when no longer needed,” are “inappropriate under the GRS,” and should be replaced with “more specific retention periods.” See 63 Fed. Reg. 41,868-69 (Aug. 5, 1998). On appeal, the Archivist's lawyers will need to explain why the Court of Appeals should overturn determinations that the Archivist himself has endorsed.


B. The "Harm" to Defendants If A Stay Is Denied.

  The only one of the four factors considered in evaluating a stay on which the Archivist has any colorable argument is that he will be harmed if a stay is denied. The Archivist asserts that the “harm” that will result is that the government will be subject to a “no delete” rule for electronic records previously covered by GRS 20 which will cause government computers “to shut down in the near future.” Defs' Memorandum at 8-9. This argument is specious for two reasons.
  First, this Court's order imposes no such rule, and no such harm. Indeed, nothing in the Court's injunction precludes agencies from destroying records. The only thing that the injunction prohibits is statements by the Archivist encouraging agencies to destroy records based on a schedule that has been found to be unlawful.See footnote 7 The concepts of “causation” and“redressablity” developed in the context of analyzing injury for standing are also applicable here. The Archivist cannot justify a stay unless the “harm” that he asserts will result is caused by the Court's injunction.
  Second, the Archivist's assertion that, if the April 9, 1998 injunction is not stayed, on October 1, 1998, federal agencies will shut down office automation systems is fanciful speculation that is contrary to experience. For example, after this Court declared GRS 20 null and void on October 22, 1997, federal agencies did not impose a “no delete” rule, even though it was months before the Archivist instructed them that they should ignore the Court's ruling and continue to rely on GRS 20. Similarly, in August, 1993, the Court of Appeals rejected the government's claim that electronic mail messages did not need to be scheduled because they are non-record “extra copies” once a message is printed.See footnote 8 Over two years passed before the Archivist issued GRS 20 as the new disposition authority to respond to the Armstrong ruling. 60 Fed. Reg. 44634 (Aug. 28, 1995). Agencies' computers were not incapacitated during this two year period while agencies were waiting for the Archivist to act. The Archivist's claim -- that this Court should presume that, unless there is a stay, all federal agencies will instantly halt all deletions of data on October 1, whether or not the data is trivial or valuable, in order to obtain perfect technical compliance with the Archivist's directive that unscheduled records not be deleted -- has no basis in experience or reality.See footnote 9In reality, agencies conform theirconduct to the law over time and, if agencies act responsibly, they will conform their conduct to this Court's ruling by scheduling their records and taking steps to preserve those that should be preserved.
  Indeed, in the proceedings on the merits, this Court considered the Archivist's assertions that, unless all agencies are authorized to delete electronic records after printing a copy, government computers will become clogged with trivial electronic records, and it recognized that these arguments are specious. The government's parade of horribles is equally irrelevant here. The consequence of nullifying GRS 20 is not that all the records that it covers must now be preserved, but that they must be scheduled. Scheduling records is not difficult or disruptive, as demonstrated by the fact that some agencies have scheduled their electronic mail or other records by submitting documents that are only a few pages long.See footnote 10
  Of course, the submission of record schedules for evaluation imposes a burden on the Archivist, but that burden certainly does not constitute an “irreparable harm.” Evaluating and approving records schedules is one of the Archivist's principal statutory obligations, see 44 U.S.C. § 3303a, and postponing the submission of such schedules indefinitely, as the Archivist seeks, will only aggravate the problem created by the Archivist's procrastination on this issue during the past eleven months. To the extent that the Archivist has increased the problem by delay, his dilatory conduct counsels against a stay. See Armstrong v. Executive Office of the President, 823 F.Supp. 4, 7 (D.D.C. 1993) (stay is particularly inappropriate where “the difficulties alleged have been created by the Defendants themselves”). The Archivist should not be permitted to continue to encourage agencies to postpone scheduling records.


C. The Harm To Plaintiffs, Third Parties And The Public Interest.

The last two factors to be considered in evaluating a motion for a stay, namely, harm to plaintiffs, to other interested parties, and to the public interest, weigh against any such relief. Granting a stay would permit the Archivist to encourage agencies to destroy unscheduled electronic records concerning government policies, programs, and proceedings, many of which are historically valuable and worthy of permanent preservation. Encouraging agencies to destroy such records is not merely a technical violation of the mandate that agencies schedule their records in accordance with the law; it results in irreparable harm to plaintiffs and other journalists, historians and members of the public. See Public Citizen v. Carlin, 2 F.Supp.2d at 5. The Court of Appeals has repeatedly held that the injury caused by the destruction of records without a proper schedule is sufficient to warrant an injunction. Cf. Armstrong v. Executive Office of the President, 1 F.3d 1274, 1288 n. 12 (D.C. Cir. 1993) (district court acted properly in issuing injunction for a “full-scale method for preventing the records' destruction until agencies came up with new, adequate records management guidelines to replace the ones voided by the district court's declaratory order.”); American Friends Serv. Comm. v. Webster, 720 F. 2d 29, 35, 68-69 (D.C. Cir. 1983)(destruction of records pursuant to improper schedule warrants injunction to prevent irreparable injury). A fortiori, this harm is certainly sufficient to deny the Archivist's request that he be permitted to make statements that encourage agencies to rely on a schedule found to be invalid, rather than encouraging the agencies to schedule and preserve their records.




CONCLUSION

   The Archivist's motion for a partial stay or for modification of the April 9, 1998 injunction should be denied.
    If the Court is inclined to grant any stay, the stay should be of limited duration and be conditioned upon the Archivist issuing a directive within three days that instructs agencies (i) that they must promptly prepare and submit schedules for any unscheduled electronic records previously covered by GRS 20;See footnote 11 and (ii) that electronic records that are of potentially permanent value should not be destroyed unless and until they have been properly scheduled.See footnote 12
    If the Court rejects our jurisdictional and merits arguments against the Archivist's request for an Order that would authorize the Archivist to state that agencies are permitted to follow their present disposition practices for electronic records,  see, supra at 12-15, we submit that any such Order should state that agencies may only follow such practices if theyare awaiting approval of a disposition schedule for those records, and should state that the Court's order does not constitute adjudication of the propriety of the agencies' practices.See footnote 13
                   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

September 28, 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 Defendant Archivist's Motion for a Partial Stay Pending Appeal and/or Modification of the Court's Injunction of April 9, 1998, and Plaintiffs' Opposition thereto, the Court finds that the Archivist has not shown that the equitable factors governing issuance of a stay have been satisfied, and finds that modification of the Court's Injunction of April 9, 1998 is not justified. Therefore, it is hereby
  ORDERED that the Archivist's Motion is denied.

            ____________________________
            PAUL L. FRIEDMAN
            UNITED STATES DISTRICT JUDGE 


Copies to:

Jason R. Baron, Esq.
Anne L. Weismann, Esq.
Department of Justice
Civil Division, Room 1040
901 E Street, N.W
Washington, D.C. 20530
(202) 514-4336

Michael E. Tankersley, Esq.
Alan B. Morrison, Esq.
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
(202) 588-1000 


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.

CERTIFICATE OF SERVICE

 

  I hereby certify that on September 28, 1998, I caused copies of Plaintiffs' Opposition to Defendant Archivist's Motion for a Partial Stay Pending Appeal and/or Modification of the Court's Injunction of April 9, 1998, with accompanying exhibits, to be served by hand delivery, addressed to:
      Anne L. Weissman
      Jason R. Baron
      United States Department of Justice
      Civil Division, Room 1040
      901 E Street, N.W.
      Washington, D.C. 20530

              _________________________
              Michael Tankersley


Footnote: 1See Defendants' Opposition to Plaintiffs' Motion for Further Relief Pursuant to 28 U.S.C. § 2202 at 26 n.29 (dated March 18, 1998); Defendants' Post-Hearing Response at 3 (dated April 1, 1998).


Footnote: 2First, the proposals were drafted by a Work Group, established by the Archivist, that deliberately included officials from other federal agencies so that the views of other agencies could be considered. See Defs' Exhibit B, Tab 3, at page 16. Second, the proposals were sent to all Federal agency records officers and information resource managers in June with a request for comments. See id. at 9 and Plfs' Exhibit P-3. On July 21, 1998, the proposals were published in the Federal Register with a request that Federal agencies and the public submit comments. See 63 Fed. Reg. 39185 (July 21, 1998).


Footnote: 3Fed. R. Civ. P. 60(a) provides that the district court may correct clerical mistakes while the appeal is pending, if the appeal has not been docketed, but the relief the Archivist seeks here is clearly not correction of a
"clerical mistake," and Rule 60(b) does not authorize the district court to act while the appeal is pending.


Footnote: 4Indeed, the record shows that some agencies are prepared to schedule their records, and some are prepared to manage and preserve their electronic records in electronic format. See Plaintiffs' Exhibit P5 (Nuclear Regulatory Commission has already committed to scheduling its electronic records and implementing electronic document management system). Moreover, most federal agencies did not file comments objecting to the Work Group's draft recommendation that agencies be required to schedule their programmatic and unique administrative electronic records in the near future.


Footnote: 5The oother provisions of the injunction concerning publication of notice to correct the Archivist's prior notices cannot be “stayed” because the notices have already been published.


Footnote: 6 Defs'Exhibit B, Tab 4, page 3, Statement by John W. Carlin, Archivist of the United States, Sept. 21, 1998; see also Exhibits to Plaintiffs' Motion for an Order to Show Cause and to Schedule Hearing on Further Relief Pursuant to 28 U.S.C. § 2202, Exhibit 3, John W. Carlin, “Moving Ahead on Electronic Records Challenges,” January, 1998 at 4 (“General records schedules definitely have their place, but they should be applied to the disposition of routine administrative `housekeeping' records, not to programmatic records.”)


Footnote: 7The Archivist's assertion that, absent a stay, agencies will not be able to delete “electronic copies of properly scheduled records,” Defs' Memorandum at 8, is whollyunexplained and inaccurate. Nothing in this Court's Orders even remotely suggests that properly scheduled records may not be disposed of in accordance with approved agency schedules.


Footnote: 8See Armstrong v. Executive Office of the President, 1 F.3d 1274, 1287 (D.C. Cir. 1993).


Footnote: 9See The Strategic Plan of the National Archives and Records Administration at 24 (Sept. 30, 1997) (NARA hopes to increase the number of agencies that manage their records in accordance with NARA's record keeping requirements to 60% by the year 2002).


Footnote: 10See, e.g., Plfs' Exhibit P-4, Two page Request for Records Disposition Authority of the Bureau of Engraving and Printing for electronic mail records.


Footnote: 11Cf.Public Citizen v. Carlin, 2 F.Supp.2d at 21 (citing with approval paragraph 5 of NARA Bulletin which “suggests that individual agencies develop their own individual schedules for record disposition as required by the Federal Records Act”); American Friends, 720 F.2d at 68 (where agency proved unwilling or unable to remedy improper records schedules over the course of a year, the district court was within its authority to issue a detailed order on formulating and submitting records disposal schedules).


Footnote: 12See NARA, Disposition of Federal Records at pages V-7 and V-8 (describing potentially permanent electronic records), and pages C-1 to C-4,“Appraisal Guidelines for Permanent Records.” (these documents are found in Volume VI of the Administrative Record in this Action, pages 2335-36 and pages 2399-2402); cf. Armstrong v. Executive Office of the President, 810 F. Supp. 335, 350 (D.D.C. 1993), aff'd in relevant part, 1 F.3d 1274 (D.C. Cir. 1993) (after finding recordkeeping guidelines of the Executive Office of the President inadequate, court directs Archivist to take all steps necessary to preserve those records). 


Footnote: 13Plaintiffs suggested an analogous limitation in our Motion for Reconsideration of Notice Mandated By This Court's Order of April 9, 1998 (filed April 16, 1998), and the reasons why such limitation is advisable if the Court enters the type of Order the Archivist requests are set forth in those papers. The language we suggested in that Motion is as follows:
BQThe District Court has not approved, disapproved or enjoined the specific record disposition practices for electronic records of any agencies that are not parties to the Public Citizen v. Carlin litigation. The District Court's ruling holds only that GRS 20 is not a valid schedule for authorizing destruction of such records.