Kutler, Stanley I., et al v. Carlin, John W., No. 97-5097 (D.C. Cir. 1998)
Annotate this Case
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 1998 Decided March 31, 1998
No. 97-5097
Stanley I. Kutler and Public Citizen,
Appellees
v.
John W. Carlin, in his official capacity as Archivist of the
United States,
Appellant
William E. Griffin and John H. Taylor,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 92cv00662)
Freddi Lipstein, Attorney, U.S. Department of Justice,
argued the cause for appellant, with whom Frank W. Hunger,
Assistant Attorney General, Mary Lou Leary, U.S. Attorney
at the time the briefs were filed, Stephen W. Preston, Deputy
Assistant Attorney General, U.S. Department of Justice, and
Leonard Schaitman, Attorney, were on the briefs.
Scott L. Nelson argued the cause for appellees, with whom
Herbert J. Miller, Jr., and R. Stan Mortenson were on the
brief. Alan B. Morrison and Brian Wolfman entered ap-
pearances.
Before: Edwards, Chief Judge, Ginsburg and Sentelle,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: In 1977, in Nixon v. Administrator
of Gen. Servs., 433 U.S. 425, 429 (1977), the Supreme Court
found that the Presidential Recordings and Materials Preser-
vation Act of 1974, 44 U.S.C. s 2111 note (1994) ("Act"),
"directs" the Administrator of General Services 1 to take
custody of the Presidential papers and tape recordings of
former President Richard M. Nixon and then to promulgate
regulations that provide for the return to Nixon of all materi-
als that are "personal and private in nature." See 433 U.S. at
429 (emphasis added). In short, the Court said that, pursu-
ant to regulations "mandate[d]" by the Act, "the Government
will not even retain long-term control over such private
information ... [because] purely private papers and record-
ings will be returned to appellant [Nixon] under s 104(a)(7) of
the Act." 433 U.S. at 458-59 (emphasis added).
Five years after the decision in Nixon v. Administrator,
this court repeated the accepted plain meaning of the Act:
The parties are in agreement that, once [personal] mate-
rial is identified by means of archival processing, the
archivists must return the material immediately to Mr.
Nixon.
Nixon v. Freeman, 670 F.2d 346, 361 (D.C. Cir. 1982) (em-
phasis added).
__________
1 In 1984, the Act was amended to indicate that the Archivist of
the United States succeeded the Administrator of General Services.
Now, more than twenty years after the Court's decision in
Nixon v. Administrator, the Nixon estate has been forced to
return to court to challenge a Government regulation pur-
porting to allow the Archivist of the United States ("Archi-
vist") to retain full control and possession of the entire set of
the Nixon tapes. In flat defiance of what the Court said in
Nixon v. Administrator, the Government claims that the
Archivist has authority under the Act to retain, possess and
control all original tape recordings, without regard to whether
any portions of the tapes contain purely personal and private
material. The Nixon estate counters that, when the Act is
read as a whole (with a principal focus on ss 104(a)(7) and
104(c)), along with all previous judicial interpretations of the
Act, it is clear that the Nixon estate, alone, is entitled to full
custody and control over tape recordings containing purely
personal and private material. The Nixon estate undoubtedly
has the better of this most recent disagreement between the
parties.
We hold that, under the privacy protections of the Act as
interpreted by the Supreme Court and this court, the Archi-
vist must return to the estate all existing tapes and copies of
conversations that do not shed light upon the Watergate
affair and lack "general historical significance." s 104(a)(7).
The Act strikes a delicate balance between privacy and
disclosure under which President Nixon's estate is entitled to
sole custody and control over recordings that are personal
and private in nature. Any regulation to the contrary is
unlawful under the Act. Accordingly, the Archivist must now
do what the Supreme Court instructed over twenty years ago
and what this court repeated sixteen years ago: "the archi-
vists must return the material immediately to [the Nixon
estate]." 670 F.2d at 361.
I. Background
On September 8, 1974, the day President Gerald Ford
pardoned him, Nixon signed an agreement with Arthur F.
Sampson, Administrator of General Services ("Administra-
tor"), to deposit his presidential materials in a federal facility
subject to a variety of provisions that gave substantial control
over access and future preservation to Nixon. See Nixon v.
Administrator, 433 U.S. at 431-32. Dissatisfied with this
agreement, Congress quickly proposed and adopted the su-
perseding Act, which President Ford signed into law on
December 19, 1974. See id. at 432-33. As noted by the
Court in Nixon v. Administrator, the Act directs the Archi-
vist
to take custody of the Presidential papers and tape
recordings of appellant, former President Richard M.
Nixon, and promulgate regulations that (1) provide for
the orderly processing and screening by Executive
Branch archivists of such materials for the purpose of
returning to appellant those that are personal and pri-
vate in nature, and (2) determine the terms and condi-
tions upon which public access may eventually be had to
those materials that are retained.
433 U.S. at 429. The disputed tape recordings consist of
some 950 reels of tape, most of which contain both historically
significant and purely private material. Following passage of
the Act, Nixon lodged a facial challenge to its constitutionali-
ty, which the Court rejected. See Nixon v. Administrator,
433 U.S. at 430. However, in upholding the Act, the Court
recognized Nixon's privacy interest in many of the tape
recordings, finding that s 104(a)(7) of the Act ensured Nix-
on's custody and control over purely private material. See id.
at 454, 458-59.
During 1975 and 1976, the Administrator submitted three
sets of regulations implementing the Act to Congress. Under
the original structure of the Act, regulations were to become
effective on a certain date if Congress did not act upon them.
See 44 U.S.C. s 2111 note s 104(b) (repealed 1984). This
arrangement obtained until the Supreme Court held the
legislative veto unconstitutional in INS v. Chadha, 426 U.S. 919 (1983). Each of these three proposed sets of regulations
contained provisions for making copies of the original tapes,
and specified that the Administrator would retain tapes or
documents that included both private and publicly disclosable
material. See, e.g., Proposed Regulation s 105-63.401-5(c),
S. Rep. No. 94-368, at 36 (1975). Congress rejected portions
of each set of regulations.2
In 1977, the Administrator submitted a fourth set of regula-
tions, which were to take effect absent congressional disap-
proval on December 16, 1977. See 42 Fed. Reg. 63,626 (1977).
Like the first three proposed sets of regulations, these regu-
lations specified that the Archivist could retain permanently
tapes that included both private and public material. See id.
at 63,628. Nixon filed an action in District Court to challenge
the fourth set of regulations. See Nixon v. Solomon, Civil
Action No. 77-1395 (D.D.C.). However, before trial, the
parties settled most of the disputed issues, entering into an
agreement known as the "Solomon Agreement" which delin-
eated certain amendments to the regulations and incorporat-
ed documents to be included in a "Processing Manual" to
guide processing of archival material. The parties agreed
that the amended regulations would delete all provisions
under which the Administrator purported to retain portions
of tapes containing purely private materials.
Pursuant to the Solomon Agreement, the Administrator
submitted a fifth set of regulations to take effect March 7,
1980. See 45 Fed. Reg. 14,855, 14,856 (1980). The regula-
tions provided that review and deletion of private material
would be performed on copies of the original tapes. Unlike
the earlier versions of the regulations, these regulations
eliminated the provision permitting the Administrator to re-
tain tapes containing private as well as public materials. See
45 Fed. Reg. at 14,858. The District Court subsequently
decided the issues unresolved by the Solomon Agreement. In
Nixon v. Freeman, 670 F.2d 346 (D.C. Cir. 1982), this court
affirmed the District Court and upheld the regulations pro-
mulgated pursuant to the Solomon Agreement.
In 1984, Congress transferred the Administrator's func-
tions to the Archivist of the United States in his capacity as
head of the National Archives and Record Administration
__________
2 See S. Res. 244, 94th Cong. (1975) (enacted); S. Res. 428, 94th
Cong. (1976) (enacted); H.R. Res. 1505, 94th Cong. (1976) (enacted).
("Archives") and purged the Act of the legislative veto provi-
sion it had formerly contained. At the same time, the
Archivist modified his interpretation of the executive privilege
provision of the regulations. We reversed this modification in
Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988). In a
subsequent case, we clarified the constitutional right to com-
pensation that arose under the Act. See Nixon v. United
States, 978 F.2d 1269 (D.C. Cir. 1992).
Some time in the 1980s, the Archives made an analog
master copy of the complete original tapes. See Nixon v.
Freeman, 670 F.2d at 353 (stating that Phase I processing
which included "duplication of tapes" was complete); Letter
from James J. Hastings, National Archives, to Herbert J.
Miller 2 (Apr. 8, 1987), reprinted in Joint Appendix ("J.A.")
198 (referring to Archivists's intention to return private mate-
rial to Nixon from "master copy of the tapes"). In 1993, the
Archives made a second analog copy and a digital copy. The
copies were apparently made because the original copy had
begun to deteriorate.
As of March 1992, the Archivist had only released to the
public the approximately sixty hours of tapes used in evidence
in Watergate-related prosecutions. On March 19, 1992, the
public interest group Public Citizen and Professor Stanley I.
Kutler filed suit against the Archivist in District Court de-
manding release of all tapes that the Archivist had deter-
mined were not restricted from release by law. In June 1993,
the Archivist announced his intention to commence releasing
brief portions of the tapes that related to the Watergate
affair. Nixon objected, and on August 9, 1993, obtained a
preliminary injunction from the District Court prohibiting
further release until the Archivist returned private portions
of the tapes to Nixon. See J.A. 385. The injunction was
lifted when the parties entered mediation; however, the
mediation did not resolve the crucial issues surrounding the
return of the tapes.
In the spring of 1994, the Archivist gave Nixon approxi-
mately 820 hours of tapes of conversations it deemed personal
and private. (The total tapes comprise approximately 4,000
hours of recorded material.) The transferred tapes of the
conversations were physically removed from the first analog
master copy. The Archives also undertook to delete all these
passages from the digital master tape electronically. Howev-
er, the Archivist retained control over the entirety of the
original tapes and the second analog master copy. Two
versions of the complete tapes, including the personal and
private conversations, now exist in the Archivist's control.
The Archivist subsequently promulgated regulations effective
May 23, 1996, providing that "[n]o physical part of any
original tape recordings ... shall be transferred to former
President Nixon or his heirs." 59 Fed. Reg. 14,128, 14,132
(1994) (amending 36 C.F.R. s 1275.48(a) (1995)).
On April 12, 1996, Nixon's estate, the Archivist, Public
Citizen, and Professor Kutler entered a settlement agreement
specifying a procedure for release of the public conversations
on the tapes. See J.A. 269. The Archivist, however, did not
agree to return to the Nixon estate either the original ver-
sions or the copies of the private conversations in the Ar-
chives' possession. The Archivist maintained that he had a
statutory duty to retain the entirety of the tapes; the parties
then turned to the District Court to resolve this issue. Public
Citizen and Professor Kutler agreed with the estate's position
that the Archivist must return all versions of portions of the
tapes consisting of private material. The District Court
granted the estate summary judgment, directing the Archi-
vist to erase from the tapes it held, including the original
tapes, all of the segments the contents of which had been
turned over to Nixon. See Kutler v. Carlin, No. 92-0662
(D.D.C. Mar. 31, 1997). The Archivist appealed to this court,
and we review the District Court's grant of summary judg-
ment de novo.
II. Analysis
A. The Meaning of the Act
The meaning of the Act is as clear to us today as it was to
the Supreme Court when it upheld the constitutionality of the
Act some twenty years ago. By its terms, the Act requires
the Archivist to gain and retain control over "all original tape
recordings of conversations" recorded by a federal employee
and involving President Nixon or other federal employees at
the White House and other presidential residences (at Camp
David, Key Biscayne, and San Clemente) between the begin-
ning of President Nixon's first term in office on January 20,
1969, and his resignation on August 9, 1974. See s 101(a).
The Act then requires the Archivist to promulgate regulations
to provide public access to the tapes and other materials.
The Act specifies that the regulations "shall take into ac-
count" seven different "factors." See s 104(a). The seventh
factor is the one at issue in this case. Under it, the regula-
tions must take into account
the need to give to Richard M. Nixon, or his heirs, for his
sole custody and use, tape recordings and other materials
which are not likely to be related to the need described
in paragraph (1) and are not otherwise of general histori-
cal significance.
s 104(a)(7).
The "need described in paragraph (1)" is "the need to
provide the public with the full truth, at the earliest reason-
able date, of the abuses of governmental power popularly
identified under the generic term 'Watergate.' " See
s 104(a)(1). In short, s 104(a)(7) requires the Archivist to
enact regulations that take into account the need to "give"
Nixon or his estate "sole custody" of materials not likely to be
related to the Watergate affair and not otherwise historically
significant.
In order to reconcile the requirement of s 104(a)(7) with
the requirement of s 101(a) that the Archivist retain control
of the "original" tape recordings, s 104(c) of the Act creates a
general exception to the other provisions of the Act for tapes
"given" to President Nixon or his estate pursuant to
s 104(a)(7):
The provisions of this title shall not apply ... to any tape
recordings or other materials given to Richard M. Nixon,
or his heirs, pursuant to subsection (a)(7).
s 104(c).
The text and structure of the Act indicate that Congress
plainly intended s 104(a)(7) to require the return to President
Nixon of all versions of materials deemed by the Archivist
"not likely to be related" to Watergate and "not otherwise of
general historical significance." See s 104(a)(7). The Act
specifies that the materials to be given to Nixon under
s 104(a)(7) be given to him "for his sole custody and use."
Id. (emphasis added). If the Archivist were to maintain
versions of the conversations contained in these materials,
then Nixon's estate could not be said to exercise either sole
custody over them or sole use of them. Rather, custody and
use would be shared with the Archivist.
The words "sole custody and use" surely cannot have the
trivial meaning that no one other than Nixon may exercise
dominion over the particular copy of the materials given to
him; this, after all, is typically true of all property in some-
one's possession. If Congress were to present someone with
its Medal of Honor, it would hardly be necessary to indicate
in the statute of conferral that the recipient should be "given"
the medal for her "sole custody and use." It would be
obvious that the word "give" conferred a normal property
right in the medal. Thus, the words "sole custody and use" in
s 104(a)(7) must be intended to give Nixon exclusive control
over the private material.
Furthermore, if s 104(a)(7) permitted the Archivist to re-
tain a full copy of all the tapes, and intended merely to do
Nixon the favor of allowing him access to private materials
thereon, there would be no imaginable reason for the statute
to require conveying only the private material to Nixon. It
would suffice to give Nixon or his estate a complete copy of
the materials, one which contained private as well as publicly
available material. Because s 104(a)(7) requires an affirma-
tive giving of the private materials to Nixon, not merely a
negative withholding from the public, it is clear that the
provision seeks to do more than simply express Nixon's need
for privacy vis--vis the public.
It should also not escape our attention that s 104(c) of the
Act, which creates an exception to the provisions of the Act
for tapes given to Nixon under s 104(a)(7), can only have
meaning if s 104(a)(7) contemplated the return to Nixon of at
least the original versions of the private conversations on the
tapes obtained by the Archivist. The retention provision of
the Act requires that the Archivist keep specifically the
"original tape recordings" made at the executive residences.
See s 101(a) (emphasis added). If s 104(a)(7) required only
that Nixon be given copies of the original recordings, then the
requirement that the Archivist give Nixon tapes (contained in
s 104(a)(7)) would not be inconsistent with the requirement
that the Archivist retain the original tapes (contained in
s 101(a)). If the two provisions were consistent, there would
be no need for s 104(c) to carve out an exception for materi-
als given to Nixon under s 104(a)(7). The exception provi-
sion would be rendered mere surplusage. It follows that
when enacted, the Act contemplated the transfer to Nixon of
some portion of the original tapes, the only tapes mentioned
by the Act.
In short, s 104(c) plainly exempts the private material
returned to Nixon from "[t]he provisions of this title"--
including the requirement in s 101(a) that the Archives "re-
tain" the "original tape recordings." It is therefore specious
for the Archivist to suggest, as he did before this court, that
s 101(a) of the Act actually requires him to retain the com-
plete original version of the tapes. The Archivist proposes a
statutory reading which inelegantly reconciles his obligation
to return some portions of the tapes with the supposed
requirement of retention of all the tapes by explaining that he
must give Nixon's estate copies of the private conversations
while retaining the originals. But this reading makes the
exception provision of s 104(c) into an empty shell.
It might be suggested that s 104(c) excepts the tapes given
to Nixon from the ban on destruction imposed by s 102(a).
("None of the tape recordings or other materials referred to
in Section 101 shall be destroyed, except as hereafter may be
provided by law.") But any such suggestion would be spe-
cious in light of the Archivist's reading. On his reading, the
Archivist would retain a version of all material given to
Nixon; consequently, even if Nixon destroyed copies of tapes
given to him, he would not be destroying either originals or
sole copies, but only his own personal copies of the materials,
which are not referred to in s 101 and are therefore not
protected by s 102(a).
The only imaginable reason to understand s 104(a)(7) as
anything other than an affirmative requirement to return all
versions of private materials to Nixon would arise if there
existed some mutual exclusivity or contradiction between
effectuating their return and carrying out the other require-
ments of the Act that are unaffected by s 104(c). But no
such difficulty arises, because the elements of the Act are
fully coherent. The Archivist suggests that, if he had to cut
and splice the original version of the tape in order to turn
over the private portions to Nixon, adjacent historically rele-
vant portions of the increasingly fragile original tape might
be irreparably damaged. This, the Archivist argues, would
violate the Act's twin mandates that all historically relevant
materials be retained, see ss 101(a), 104(a)(7), and that none
of the tapes covered by the Act be "destroyed," see s 102(a).
This suggestion of inconsistency is unfounded. Under 44
U.S.C. s 2116(a) (1994), the Archivist can satisfy a require-
ment to retain an original document or tape by means of a
copy of the original tape or document. There currently exist
three complete copies of the tapes covered by the Act: two
analog and one digital. The Archivist's expert conceded that
editing these analog or digital copies of the tapes to remove
the private material would do no harm to the adjacent
historically relevant material on the copies. See Expert
Declaration of James Wheeler, J.A. 276. As a result, even if
the original tapes were somehow injured in the process of
editing out the private material, and even if damage resulted
to adjacent historically relevant, protected material, the cop-
ies of this adjacent material would still exist. These copies
would suffice to fulfill the mandate of s 101(a) that such
material be retained by the Archivist.
The existing copies of historically relevant adjacent materi-
al would also save the Archivist from a violation of the
requirement of s 102(a) that no such material be destroyed.
In light of the sufficiency of copies under 44 U.S.C. s 2216(a),
the requirement of s 102(a) that material not be destroyed
clearly does not confer sacred status on the physical substrate
of the original tapes. What must not be destroyed under
s 102(a) is the content of any of the protected material, not
the physical substrate on which that content is recorded.
This commonsense reading of s 102(a) is borne out by the
fact that the original tapes are already deteriorating as a
result of the breakdown of the chemicals of which they are
composed. See Expert Declaration of James Wheeler, J.A.
275-76 ("some of the original tapes are in an advanced stage
of degradation and may already be difficult to play"). Be-
cause of this inevitable process of deterioration, the "tapes"
which the Archivist must preserve for the purposes of the Act
will soon become (if they have not already become) the copies
of the tapes. It cannot seriously be maintained that Con-
gress intended s 102(a) to require the preservation of the
deteriorated original tapes in perpetuity, like shards of the
Tablets of the Law preserved in the Ark. At oral argument,
counsel for the Archivist ventured to suggest that future
technological developments might make the actual original
tapes indispensable for some sort of archeological project of
sound enhancement. But this belated and wholly unsupport-
ed claim was not made before the District Court, and is
therefore waived. See Singleton v. Wulff, 428 U.S. 106, 120
(1976).
B. The Supreme Court's Interpretation of the Act
We are neither the only nor the highest court to have
interpreted s 104(a)(7) of the Act to require that the Archi-
vist transfer control over private materials to President Nix-
on's estate. The Supreme Court expressly and repeatedly
understood s 104(a)(7) to require such a transfer in Nixon v.
Administrator of Gen. Servs., 433 U.S. 425 (1977). In intro-
ducing the Act, the Court first explained that it required the
Administrator of General Services (now the Archivist)
to take custody of the Presidential papers and tape
recordings ... and promulgate regulations that (1) pro-
vide for the orderly processing and screening ... of such
materials for the purpose of returning to [Nixon] those
that are personal and private and nature....
Id. at 429. This description makes it clear that specifically
"those" of the papers and recordings that are "personal and
private" must be returned. The Court's formulation certainly
anticipated the return of the private portions of the same
original tapes which the Archivist was charged with obtaining.
Next, in the course of explaining why the Act was not
overbroad in seeking to achieve its objectives of public disclo-
sure relating to the Watergate affair, the Court observed:
It is true that among the voluminous materials to be
screened by archivists are some materials that bear no
relationship to any of these objectives (and whose prompt
return to [Nixon] is therefore mandated by s 104(a)(7)).
But these materials are commingled with other materials
whose preservation the Act requires....
Id. at 454. The parenthetical expression leaves no doubt that
s 104(a)(7) operates to mandate return of private materials
to Nixon. What is more, the Court in this passage expressed
its concern that government archivists (not the public) would
see private materials; the Court then indicated that one
element justifying the constitutionality of the Act despite this
exposure was the fact that under s 104(a)(7), private materi-
als were not to remain under government control, but were to
be "returned" to Nixon. Thus, the passage certainly under-
stands s 104(a)(7) to require the return to Nixon of private
material such that the material would not remain in govern-
ment hands.
The Court made this understanding of s 104(a)(7) still
more explicit in arguing that the Act's protection of privacy
was even greater than that afforded by the New York State
law protecting private medical information in state computers
upheld in Whalen v. Roe, 429 U.S. 589 (1977). The Court
reasoned:
Not only does the Act challenged here mandate regula-
tions similarly aimed at preventing dissemination of pri-
vate materials but, unlike Whalen, the Government will
not even maintain long-term control over such private
information; rather, purely private papers and record-
ings will be returned to [Nixon] under s 104(a)(7) of the
Act.
433 U.S. at 458-59 (emphasis added). The Court's unmistak-
able substantive understanding that the Government would
not maintain control over the private materials once they
were returned to Nixon establishes definitively that the Ar-
chivist must return all versions of the private material to
Nixon. The form of the Court's reasoning here further
supports this conclusion. The Court deliberately contrasted
the New York statute with the Act, explaining that the Act
was more protective of privacy. Both the New York law and
the Act protected private materials from the public, but the
former allowed the private material to remain permanently in
the hands of the State, while the latter denied the govern-
ment such long-term control over private material by requir-
ing its return to Nixon. This a fortiori analysis makes sense
only if the Act is interpreted to require that no copies of the
materials remain in government control.
C. This Court's Previous Interpretation of the Act and the
Regulations Thereunder
The text and structure of the Act, and the Supreme Court's
interpretation of it, suffice to establish that the Act requires
the return of all versions of private materials to the Nixon
estate. Nonetheless, it is worth observing that this court has
interpreted the Act and the regulations promulgated pursu-
ant to s 104 to the same effect. Pursuant to the Solomon
Agreement reached with Nixon, the Administrator adopted
regulations to facilitate screening of the tapes for identifica-
tion of private material and its return to Nixon. These
regulations specified that "[i]n processing the materials, the
archivists will give priority to segregating private or personal
materials and transferring them to their proprietary or com-
memorative owner...." 41 C.F.R. s 105-63.401(a) (1980);
later 36 C.F.R. s 1275.42(a) (1995) (now amended, see 36
C.F.R. s 1275.42(a)(1) (1997)). The regulations also stated
that the Administrator "will transfer sole custody and use of
those materials determined to be private or personal ... to
former President Nixon or his heirs...." 41 C.F.R. s 105-
63.401-3(a) (1980); later 36 C.F.R. s 1275.48(a) (1995) (now
amended, see 36 C.F.R. s 1275.48(a) (1997) (emphasis add-
ed)).
In Nixon v. Freeman, 670 F.2d 346 (D.C. Cir. 1982), we
upheld the constitutionality of regulations adopted pursuant
to the Solomon Agreement. There, we took note that
The parties [Nixon and the Administrator] are in agree-
ment that, once diary material is identified by means of
archival processing, the archivists must return the mate-
rial immediately to Mr. Nixon. The regulations require
no less, stating that the archivists, in processing the
materials, are to give priority to segregating and re-
turning the materials to their owner. 41 C.F.R. s 105-
63.401(a) (1980).
670 F.2d at 361. We also observed that "the regulations
charge the archivists to give priority to separating and re-
turning to Mr. Nixon 'private and personal materials.' " Id.
at 355. Although we noted that the Archivist had duplicated
the tapes, see id. at 353, nothing in our opinion in Nixon v.
Freeman indicated or assumed that the Archivist would re-
tain portions of tapes that included private material. The
regulations interpreted by the court did not mention such a
possibility. Thus, the references in our opinion to immediate
return suggest that we interpreted the Act and the regula-
tions promulgated thereunder to require return of all existing
versions of private material to Nixon.
D. The Plain Meaning of the Act
In sum, the meaning of the Act poses no real difficulty. As
the Supreme Court and this court always have understood it,
the Act requires that all copies of all materials deemed by the
Archivist to fulfill the definition adopted by the Archivist to
satisfy s 104(a)(7) be returned to President Nixon or his
heirs. This requirement of the Act still confers authority on
the Archivist to promulgate regulations specifying the stan-
dard by which s 104(a)(7) will be fulfilled; it also confers on
the Archivist the crucial discretion to determine what particu-
lar materials fulfill the definition. By these mechanisms, the
Act balances the potential conflict between the broad disclo-
sure necessary to restore public confidence in the wake of the
Watergate affair, and the legitimate privacy concerns of
President Nixon and those close to him.
At the same time, s 104 of the Act requires the Archivist to
regulate and make decisions in a manner consistent with the
statutory guidelines. It has been said that
statutory lists of decisionmaking factors rarely constitute
"a set of self-executing principles.... On the contrary,
those principles may overlap and may conflict, and where
this occurs, resolution is the task of the agency that is
expert in the field."
American Airlines, Inc. v. C.A.B., 495 F.2d 1010, 1018 (D.C.
Cir. 1974) (quoting Schaffer Transp. Co. v. United States, 355 U.S. 83, 92 (1957)). But here, as we have shown, the statuto-
ry factors in question do not conflict, because s 104(c) re-
solves the potential contradiction between s 101(a) and
s 104(a)(7).
The deference that might be appropriate in reviewing
regulations enacted pursuant to conflicting statutory instruc-
tions is not appropriate in analyzing regulations enacted
pursuant to consistent guidelines. Here, the statutory guide-
lines always consistently required that all versions of private
material be returned to President Nixon or his estate. Re-
quiring this complete return, as opposed to preserving ver-
sions of all portions of the tapes for eternity, was a policy
determination proper to Congress which Congress clearly
intended. This being the case, we are constrained to enforce
the will of Congress. See Chevron U.S.A. Inc. v. National
Resources Defense Council, 467 U.S. 837, 843 n.9 (1984) ("The
judiciary is the final authority on issues of statutory construc-
tion and must reject administrative constructions which are
contrary to clear congressional intent.").
E. Appellant's Chevron "Step Two" Argument
The Archivist seeks to argue that, under the second step of
Chevron, the statutory language before the court today is
sufficiently ambiguous to merit deference to the interpreta-
tion of the Archivist, the regulatory agent to whom adminis-
tration of the statute is entrusted. See Bell Atlantic Tel. Co.
v. FCC, 131 F.3d 1044, 1048-49 (D.C. Cir. 1997). But even if
the meaning of the statute were somehow unclear, the Archi-
vist would still be barred from interpreting the statute to
require retention of the private, historically insignificant por-
tions of the tapes. This is so because, on the record at hand,
such an interpretation could not possibly meet the test of
reasonableness required by Chevron. Or as then-Judge Ruth
Bader Ginsburg noted in Fedway Associates v. U.S. Trea-
sury, 976 F.2d 1416, 1424 (D.C. Cir. 1992), "we would have
ranked [the agency's] definition ... in this case 'unreason-
able' under the second part of the Chevron analysis even had
this court not come earlier to a confident conclusion regarding
Congress' intent under the first part of the Chevron analysis."
We need not focus unnecessarily on the question of wheth-
er the Archivist's interpretation falls afoul of congressional
intent under Chevron step one or is simply unreasonable
under Chevron step two. In either case we are satisfied that
it is not a permissible interpretation of the Act. However,
quite apart from the specific nature of the Archivist's pur-
ported reading, we are convinced that two major impediments
exist to the Archivist advancing and claiming deference for
any interpretation other than the straightforward one we
today endorse. These impediments are (1) the Archivist's
prior commitment, in a binding agreement, to returning
private material to Nixon, and (2) the Supreme Court's clear
interpretation of the Act.
First, as noted above, the regulations promulgated by the
Archivist for processing the private materials and identifying
private portions for return to Nixon were enacted pursuant to
the Solomon Agreement that the Administrator entered with
Nixon. See Solomon Agreement, J.A. 537-93. Those regula-
tions required segregation of "private or personal materials,"
41 C.F.R. s 105-63.401(a), the "sole custody and use" of
which would be transferred to Nixon, 41 C.F.R. s 105-
63.401-3(a), and were so interpreted by this court. See
Nixon v. Freeman, 670 F.2d at 361. The Solomon Agree-
ment also incorporated as an attachment "documents to be
included" in a Processing Manual which, according to the
Agreement, "explain[ed] the manner in which certain of the
regulations will be interpreted or applied." J.A. 537. Those
pieces of the Processing Manual constitute part of the Solo-
mon Agreement for the purposes of interpreting the regula-
tions. See WMATA v. Mergentime Corp., 626 F.2d 959, 962
n.3 (D.C. Cir. 1980) ("Reference in a contract to extraneous
writings renders them part of the agreement for the indicated
purposes."). The sections of the Processing Manual included
in the Agreement explicitly and repeatedly contemplate the
"return" of private documents or tapes to Nixon. See, e.g.,
J.A. 568, 572, 575.
More strikingly, the documents to be included in the Pro-
cessing Manual specify that when a processing archivist
determines that recorded material is private or personal,
the processing archivist shall immediately prepare for
the return of the document or tape and all duplicate
copies that are reasonably located. Should another copy
or copies of such document or tape subsequently surface,
it shall be returned at once without further archival
review.
J.A. 576. This description indicates in no uncertain terms
that the Archivist will return to Nixon all versions of private
material.
By the Agreement and the regulations, the Government
positively adopted an interpretation of the Act requiring
return of all versions of personal material to Nixon. The
Nixon estate had every good reason to assume that the
Solomon Agreement, which settled several disputed issues in
pending litigation, resulted in an enforceable arrangement as
against claims to the contrary by the Archivist. Indeed, the
Archivist does not claim that the agreement was ultra vires
and we have no doubt as to its meaning. Therefore, it would
be a bizarre result, especially at this late date, to allow the
Archivist to abrogate the parties' agreement by regulatory
fiat. Cf. Beo v. District of Columbia, 44 F.3d 1026, 1029 &
n.1 (D.C. Cir. 1995) (noting that individuals may gain constitu-
tional liberty interest in state of affairs specified first by
consent decree and subsequently extended through promul-
gation of regulations).
As a general matter, an agency may have the authority to
revise its regulations; however, it is highly doubtful that an
agency is entitled to claim deference for a particular statutory
interpretation where it has committed itself to a lawful,
contradictory interpretation by unmodified agreement with a
private party. Cf. Transohio Sav. Bank v. Director, Office of
Thrift Supervision, 967 F.2d 598, 614 (D.C. Cir. 1992) (ex-
pressing "concern" about applying Chevron deference to
agency interpretation of statute that will affect agreements
agency has entered).
A further difficulty with the Archivist's claim to Chevron
deference lies in the fact that, as demonstrated above, the
Supreme Court adopted an interpretation that, unlike that
proffered by the Archivist, required return of all versions of
the tapes to Nixon. See Nixon v. Administrator, 433 U.S. at
429, 454, 458-59. As a result, the Archivist is hard pressed to
defend an alternative interpretation--twenty years after the
Supreme Court has spoken, with no legislative amendments
to construe, and no purported "changed circumstances" justi-
fying a new statutory construction. See McClatchy Newspa-
pers, Inc. v. NLRB, 131 F.2d 1026, 1030 (D.C. Cir. 1997)
(suggesting that agency not entitled under Chevron to "alter"
Supreme Court's authoritative interpretations even if other-
wise permissible). See also Maislin Indus., U.S., Inc. v.
Primary Steel, Inc., 497 U.S. 116, 131 (1990) ("Once we have
determined a statute's clear meaning, we adhere to that
determination under the doctrine of stare decisis, and we
judge an agency's later interpretation of the statute against
our prior determination of the statute's meaning."). Even
assuming, arguendo, that the Act somehow admits of ambigu-
ity, the perceived ambiguity has been cured by judicial inter-
pretation. On this record, the Archivist is poorly placed to
demand Chevron deference.
III. Conclusion
For the foregoing reasons, we find that the regulations
promulgated by the Archivist prohibiting the return to Presi-
dent Nixon's estate of any part of the original tapes or master
copies are not in accordance with s 104(a)(7) of the Act.
Accordingly, the decision of the District Court is
Affirmed.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 1998 Decided March 31, 1998
No. 97-5097
Stanley I. Kutler and Public Citizen,
Appellees
v.
John W. Carlin, in his official capacity as Archivist of the
United States,
Appellant
William E. Griffin and John H. Taylor,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 92cv00662)
Freddi Lipstein, Attorney, U.S. Department of Justice,
argued the cause for appellant, with whom Frank W. Hunger,
Assistant Attorney General, Mary Lou Leary, U.S. Attorney
at the time the briefs were filed, Stephen W. Preston, Deputy
Assistant Attorney General, U.S. Department of Justice, and
Leonard Schaitman, Attorney, were on the briefs.
Scott L. Nelson argued the cause for appellees, with whom
Herbert J. Miller, Jr., and R. Stan Mortenson were on the
brief. Alan B. Morrison and Brian Wolfman entered ap-
pearances.
Before: Edwards, Chief Judge, Ginsburg and Sentelle,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: In 1977, in Nixon v. Administrator
of Gen. Servs., 433 U.S. 425, 429 (1977), the Supreme Court
found that the Presidential Recordings and Materials Preser-
vation Act of 1974, 44 U.S.C. s 2111 note (1994) ("Act"),
"directs" the Administrator of General Services 1 to take
custody of the Presidential papers and tape recordings of
former President Richard M. Nixon and then to promulgate
regulations that provide for the return to Nixon of all materi-
als that are "personal and private in nature." See 433 U.S. at
429 (emphasis added). In short, the Court said that, pursu-
ant to regulations "mandate[d]" by the Act, "the Government
will not even retain long-term control over such private
information ... [because] purely private papers and record-
ings will be returned to appellant [Nixon] under s 104(a)(7) of
the Act." 433 U.S. at 458-59 (emphasis added).
Five years after the decision in Nixon v. Administrator,
this court repeated the accepted plain meaning of the Act:
The parties are in agreement that, once [personal] mate-
rial is identified by means of archival processing, the
archivists must return the material immediately to Mr.
Nixon.
Nixon v. Freeman, 670 F.2d 346, 361 (D.C. Cir. 1982) (em-
phasis added).
__________
1 In 1984, the Act was amended to indicate that the Archivist of
the United States succeeded the Administrator of General Services.
Now, more than twenty years after the Court's decision in
Nixon v. Administrator, the Nixon estate has been forced to
return to court to challenge a Government regulation pur-
porting to allow the Archivist of the United States ("Archi-
vist") to retain full control and possession of the entire set of
the Nixon tapes. In flat defiance of what the Court said in
Nixon v. Administrator, the Government claims that the
Archivist has authority under the Act to retain, possess and
control all original tape recordings, without regard to whether
any portions of the tapes contain purely personal and private
material. The Nixon estate counters that, when the Act is
read as a whole (with a principal focus on ss 104(a)(7) and
104(c)), along with all previous judicial interpretations of the
Act, it is clear that the Nixon estate, alone, is entitled to full
custody and control over tape recordings containing purely
personal and private material. The Nixon estate undoubtedly
has the better of this most recent disagreement between the
parties.
We hold that, under the privacy protections of the Act as
interpreted by the Supreme Court and this court, the Archi-
vist must return to the estate all existing tapes and copies of
conversations that do not shed light upon the Watergate
affair and lack "general historical significance." s 104(a)(7).
The Act strikes a delicate balance between privacy and
disclosure under which President Nixon's estate is entitled to
sole custody and control over recordings that are personal
and private in nature. Any regulation to the contrary is
unlawful under the Act. Accordingly, the Archivist must now
do what the Supreme Court instructed over twenty years ago
and what this court repeated sixteen years ago: "the archi-
vists must return the material immediately to [the Nixon
estate]." 670 F.2d at 361.
I. Background
On September 8, 1974, the day President Gerald Ford
pardoned him, Nixon signed an agreement with Arthur F.
Sampson, Administrator of General Services ("Administra-
tor"), to deposit his presidential materials in a federal facility
subject to a variety of provisions that gave substantial control
over access and future preservation to Nixon. See Nixon v.
Administrator, 433 U.S. at 431-32. Dissatisfied with this
agreement, Congress quickly proposed and adopted the su-
perseding Act, which President Ford signed into law on
December 19, 1974. See id. at 432-33. As noted by the
Court in Nixon v. Administrator, the Act directs the Archi-
vist
to take custody of the Presidential papers and tape
recordings of appellant, former President Richard M.
Nixon, and promulgate regulations that (1) provide for
the orderly processing and screening by Executive
Branch archivists of such materials for the purpose of
returning to appellant those that are personal and pri-
vate in nature, and (2) determine the terms and condi-
tions upon which public access may eventually be had to
those materials that are retained.
433 U.S. at 429. The disputed tape recordings consist of
some 950 reels of tape, most of which contain both historically
significant and purely private material. Following passage of
the Act, Nixon lodged a facial challenge to its constitutionali-
ty, which the Court rejected. See Nixon v. Administrator,
433 U.S. at 430. However, in upholding the Act, the Court
recognized Nixon's privacy interest in many of the tape
recordings, finding that s 104(a)(7) of the Act ensured Nix-
on's custody and control over purely private material. See id.
at 454, 458-59.
During 1975 and 1976, the Administrator submitted three
sets of regulations implementing the Act to Congress. Under
the original structure of the Act, regulations were to become
effective on a certain date if Congress did not act upon them.
See 44 U.S.C. s 2111 note s 104(b) (repealed 1984). This
arrangement obtained until the Supreme Court held the
legislative veto unconstitutional in INS v. Chadha, 426 U.S. 919 (1983). Each of these three proposed sets of regulations
contained provisions for making copies of the original tapes,
and specified that the Administrator would retain tapes or
documents that included both private and publicly disclosable
material. See, e.g., Proposed Regulation s 105-63.401-5(c),
S. Rep. No. 94-368, at 36 (1975). Congress rejected portions
of each set of regulations.2
In 1977, the Administrator submitted a fourth set of regula-
tions, which were to take effect absent congressional disap-
proval on December 16, 1977. See 42 Fed. Reg. 63,626 (1977).
Like the first three proposed sets of regulations, these regu-
lations specified that the Archivist could retain permanently
tapes that included both private and public material. See id.
at 63,628. Nixon filed an action in District Court to challenge
the fourth set of regulations. See Nixon v. Solomon, Civil
Action No. 77-1395 (D.D.C.). However, before trial, the
parties settled most of the disputed issues, entering into an
agreement known as the "Solomon Agreement" which delin-
eated certain amendments to the regulations and incorporat-
ed documents to be included in a "Processing Manual" to
guide processing of archival material. The parties agreed
that the amended regulations would delete all provisions
under which the Administrator purported to retain portions
of tapes containing purely private materials.
Pursuant to the Solomon Agreement, the Administrator
submitted a fifth set of regulations to take effect March 7,
1980. See 45 Fed. Reg. 14,855, 14,856 (1980). The regula-
tions provided that review and deletion of private material
would be performed on copies of the original tapes. Unlike
the earlier versions of the regulations, these regulations
eliminated the provision permitting the Administrator to re-
tain tapes containing private as well as public materials. See
45 Fed. Reg. at 14,858. The District Court subsequently
decided the issues unresolved by the Solomon Agreement. In
Nixon v. Freeman, 670 F.2d 346 (D.C. Cir. 1982), this court
affirmed the District Court and upheld the regulations pro-
mulgated pursuant to the Solomon Agreement.
In 1984, Congress transferred the Administrator's func-
tions to the Archivist of the United States in his capacity as
head of the National Archives and Record Administration
__________
2 See S. Res. 244, 94th Cong. (1975) (enacted); S. Res. 428, 94th
Cong. (1976) (enacted); H.R. Res. 1505, 94th Cong. (1976) (enacted).
("Archives") and purged the Act of the legislative veto provi-
sion it had formerly contained. At the same time, the
Archivist modified his interpretation of the executive privilege
provision of the regulations. We reversed this modification in
Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988). In a
subsequent case, we clarified the constitutional right to com-
pensation that arose under the Act. See Nixon v. United
States, 978 F.2d 1269 (D.C. Cir. 1992).
Some time in the 1980s, the Archives made an analog
master copy of the complete original tapes. See Nixon v.
Freeman, 670 F.2d at 353 (stating that Phase I processing
which included "duplication of tapes" was complete); Letter
from James J. Hastings, National Archives, to Herbert J.
Miller 2 (Apr. 8, 1987), reprinted in Joint Appendix ("J.A.")
198 (referring to Archivists's intention to return private mate-
rial to Nixon from "master copy of the tapes"). In 1993, the
Archives made a second analog copy and a digital copy. The
copies were apparently made because the original copy had
begun to deteriorate.
As of March 1992, the Archivist had only released to the
public the approximately sixty hours of tapes used in evidence
in Watergate-related prosecutions. On March 19, 1992, the
public interest group Public Citizen and Professor Stanley I.
Kutler filed suit against the Archivist in District Court de-
manding release of all tapes that the Archivist had deter-
mined were not restricted from release by law. In June 1993,
the Archivist announced his intention to commence releasing
brief portions of the tapes that related to the Watergate
affair. Nixon objected, and on August 9, 1993, obtained a
preliminary injunction from the District Court prohibiting
further release until the Archivist returned private portions
of the tapes to Nixon. See J.A. 385. The injunction was
lifted when the parties entered mediation; however, the
mediation did not resolve the crucial issues surrounding the
return of the tapes.
In the spring of 1994, the Archivist gave Nixon approxi-
mately 820 hours of tapes of conversations it deemed personal
and private. (The total tapes comprise approximately 4,000
hours of recorded material.) The transferred tapes of the
conversations were physically removed from the first analog
master copy. The Archives also undertook to delete all these
passages from the digital master tape electronically. Howev-
er, the Archivist retained control over the entirety of the
original tapes and the second analog master copy. Two
versions of the complete tapes, including the personal and
private conversations, now exist in the Archivist's control.
The Archivist subsequently promulgated regulations effective
May 23, 1996, providing that "[n]o physical part of any
original tape recordings ... shall be transferred to former
President Nixon or his heirs." 59 Fed. Reg. 14,128, 14,132
(1994) (amending 36 C.F.R. s 1275.48(a) (1995)).
On April 12, 1996, Nixon's estate, the Archivist, Public
Citizen, and Professor Kutler entered a settlement agreement
specifying a procedure for release of the public conversations
on the tapes. See J.A. 269. The Archivist, however, did not
agree to return to the Nixon estate either the original ver-
sions or the copies of the private conversations in the Ar-
chives' possession. The Archivist maintained that he had a
statutory duty to retain the entirety of the tapes; the parties
then turned to the District Court to resolve this issue. Public
Citizen and Professor Kutler agreed with the estate's position
that the Archivist must return all versions of portions of the
tapes consisting of private material. The District Court
granted the estate summary judgment, directing the Archi-
vist to erase from the tapes it held, including the original
tapes, all of the segments the contents of which had been
turned over to Nixon. See Kutler v. Carlin, No. 92-0662
(D.D.C. Mar. 31, 1997). The Archivist appealed to this court,
and we review the District Court's grant of summary judg-
ment de novo.
II. Analysis
A. The Meaning of the Act
The meaning of the Act is as clear to us today as it was to
the Supreme Court when it upheld the constitutionality of the
Act some twenty years ago. By its terms, the Act requires
the Archivist to gain and retain control over "all original tape
recordings of conversations" recorded by a federal employee
and involving President Nixon or other federal employees at
the White House and other presidential residences (at Camp
David, Key Biscayne, and San Clemente) between the begin-
ning of President Nixon's first term in office on January 20,
1969, and his resignation on August 9, 1974. See s 101(a).
The Act then requires the Archivist to promulgate regulations
to provide public access to the tapes and other materials.
The Act specifies that the regulations "shall take into ac-
count" seven different "factors." See s 104(a). The seventh
factor is the one at issue in this case. Under it, the regula-
tions must take into account
the need to give to Richard M. Nixon, or his heirs, for his
sole custody and use, tape recordings and other materials
which are not likely to be related to the need described
in paragraph (1) and are not otherwise of general histori-
cal significance.
s 104(a)(7).
The "need described in paragraph (1)" is "the need to
provide the public with the full truth, at the earliest reason-
able date, of the abuses of governmental power popularly
identified under the generic term 'Watergate.' " See
s 104(a)(1). In short, s 104(a)(7) requires the Archivist to
enact regulations that take into account the need to "give"
Nixon or his estate "sole custody" of materials not likely to be
related to the Watergate affair and not otherwise historically
significant.
In order to reconcile the requirement of s 104(a)(7) with
the requirement of s 101(a) that the Archivist retain control
of the "original" tape recordings, s 104(c) of the Act creates a
general exception to the other provisions of the Act for tapes
"given" to President Nixon or his estate pursuant to
s 104(a)(7):
The provisions of this title shall not apply ... to any tape
recordings or other materials given to Richard M. Nixon,
or his heirs, pursuant to subsection (a)(7).
s 104(c).
The text and structure of the Act indicate that Congress
plainly intended s 104(a)(7) to require the return to President
Nixon of all versions of materials deemed by the Archivist
"not likely to be related" to Watergate and "not otherwise of
general historical significance." See s 104(a)(7). The Act
specifies that the materials to be given to Nixon under
s 104(a)(7) be given to him "for his sole custody and use."
Id. (emphasis added). If the Archivist were to maintain
versions of the conversations contained in these materials,
then Nixon's estate could not be said to exercise either sole
custody over them or sole use of them. Rather, custody and
use would be shared with the Archivist.
The words "sole custody and use" surely cannot have the
trivial meaning that no one other than Nixon may exercise
dominion over the particular copy of the materials given to
him; this, after all, is typically true of all property in some-
one's possession. If Congress were to present someone with
its Medal of Honor, it would hardly be necessary to indicate
in the statute of conferral that the recipient should be "given"
the medal for her "sole custody and use." It would be
obvious that the word "give" conferred a normal property
right in the medal. Thus, the words "sole custody and use" in
s 104(a)(7) must be intended to give Nixon exclusive control
over the private material.
Furthermore, if s 104(a)(7) permitted the Archivist to re-
tain a full copy of all the tapes, and intended merely to do
Nixon the favor of allowing him access to private materials
thereon, there would be no imaginable reason for the statute
to require conveying only the private material to Nixon. It
would suffice to give Nixon or his estate a complete copy of
the materials, one which contained private as well as publicly
available material. Because s 104(a)(7) requires an affirma-
tive giving of the private materials to Nixon, not merely a
negative withholding from the public, it is clear that the
provision seeks to do more than simply express Nixon's need
for privacy vis--vis the public.
It should also not escape our attention that s 104(c) of the
Act, which creates an exception to the provisions of the Act
for tapes given to Nixon under s 104(a)(7), can only have
meaning if s 104(a)(7) contemplated the return to Nixon of at
least the original versions of the private conversations on the
tapes obtained by the Archivist. The retention provision of
the Act requires that the Archivist keep specifically the
"original tape recordings" made at the executive residences.
See s 101(a) (emphasis added). If s 104(a)(7) required only
that Nixon be given copies of the original recordings, then the
requirement that the Archivist give Nixon tapes (contained in
s 104(a)(7)) would not be inconsistent with the requirement
that the Archivist retain the original tapes (contained in
s 101(a)). If the two provisions were consistent, there would
be no need for s 104(c) to carve out an exception for materi-
als given to Nixon under s 104(a)(7). The exception provi-
sion would be rendered mere surplusage. It follows that
when enacted, the Act contemplated the transfer to Nixon of
some portion of the original tapes, the only tapes mentioned
by the Act.
In short, s 104(c) plainly exempts the private material
returned to Nixon from "[t]he provisions of this title"--
including the requirement in s 101(a) that the Archives "re-
tain" the "original tape recordings." It is therefore specious
for the Archivist to suggest, as he did before this court, that
s 101(a) of the Act actually requires him to retain the com-
plete original version of the tapes. The Archivist proposes a
statutory reading which inelegantly reconciles his obligation
to return some portions of the tapes with the supposed
requirement of retention of all the tapes by explaining that he
must give Nixon's estate copies of the private conversations
while retaining the originals. But this reading makes the
exception provision of s 104(c) into an empty shell.
It might be suggested that s 104(c) excepts the tapes given
to Nixon from the ban on destruction imposed by s 102(a).
("None of the tape recordings or other materials referred to
in Section 101 shall be destroyed, except as hereafter may be
provided by law.") But any such suggestion would be spe-
cious in light of the Archivist's reading. On his reading, the
Archivist would retain a version of all material given to
Nixon; consequently, even if Nixon destroyed copies of tapes
given to him, he would not be destroying either originals or
sole copies, but only his own personal copies of the materials,
which are not referred to in s 101 and are therefore not
protected by s 102(a).
The only imaginable reason to understand s 104(a)(7) as
anything other than an affirmative requirement to return all
versions of private materials to Nixon would arise if there
existed some mutual exclusivity or contradiction between
effectuating their return and carrying out the other require-
ments of the Act that are unaffected by s 104(c). But no
such difficulty arises, because the elements of the Act are
fully coherent. The Archivist suggests that, if he had to cut
and splice the original version of the tape in order to turn
over the private portions to Nixon, adjacent historically rele-
vant portions of the increasingly fragile original tape might
be irreparably damaged. This, the Archivist argues, would
violate the Act's twin mandates that all historically relevant
materials be retained, see ss 101(a), 104(a)(7), and that none
of the tapes covered by the Act be "destroyed," see s 102(a).
This suggestion of inconsistency is unfounded. Under 44
U.S.C. s 2116(a) (1994), the Archivist can satisfy a require-
ment to retain an original document or tape by means of a
copy of the original tape or document. There currently exist
three complete copies of the tapes covered by the Act: two
analog and one digital. The Archivist's expert conceded that
editing these analog or digital copies of the tapes to remove
the private material would do no harm to the adjacent
historically relevant material on the copies. See Expert
Declaration of James Wheeler, J.A. 276. As a result, even if
the original tapes were somehow injured in the process of
editing out the private material, and even if damage resulted
to adjacent historically relevant, protected material, the cop-
ies of this adjacent material would still exist. These copies
would suffice to fulfill the mandate of s 101(a) that such
material be retained by the Archivist.
The existing copies of historically relevant adjacent materi-
al would also save the Archivist from a violation of the
requirement of s 102(a) that no such material be destroyed.
In light of the sufficiency of copies under 44 U.S.C. s 2216(a),
the requirement of s 102(a) that material not be destroyed
clearly does not confer sacred status on the physical substrate
of the original tapes. What must not be destroyed under
s 102(a) is the content of any of the protected material, not
the physical substrate on which that content is recorded.
This commonsense reading of s 102(a) is borne out by the
fact that the original tapes are already deteriorating as a
result of the breakdown of the chemicals of which they are
composed. See Expert Declaration of James Wheeler, J.A.
275-76 ("some of the original tapes are in an advanced stage
of degradation and may already be difficult to play"). Be-
cause of this inevitable process of deterioration, the "tapes"
which the Archivist must preserve for the purposes of the Act
will soon become (if they have not already become) the copies
of the tapes. It cannot seriously be maintained that Con-
gress intended s 102(a) to require the preservation of the
deteriorated original tapes in perpetuity, like shards of the
Tablets of the Law preserved in the Ark. At oral argument,
counsel for the Archivist ventured to suggest that future
technological developments might make the actual original
tapes indispensable for some sort of archeological project of
sound enhancement. But this belated and wholly unsupport-
ed claim was not made before the District Court, and is
therefore waived. See Singleton v. Wulff, 428 U.S. 106, 120
(1976).
B. The Supreme Court's Interpretation of the Act
We are neither the only nor the highest court to have
interpreted s 104(a)(7) of the Act to require that the Archi-
vist transfer control over private materials to President Nix-
on's estate. The Supreme Court expressly and repeatedly
understood s 104(a)(7) to require such a transfer in Nixon v.
Administrator of Gen. Servs., 433 U.S. 425 (1977). In intro-
ducing the Act, the Court first explained that it required the
Administrator of General Services (now the Archivist)
to take custody of the Presidential papers and tape
recordings ... and promulgate regulations that (1) pro-
vide for the orderly processing and screening ... of such
materials for the purpose of returning to [Nixon] those
that are personal and private and nature....
Id. at 429. This description makes it clear that specifically
"those" of the papers and recordings that are "personal and
private" must be returned. The Court's formulation certainly
anticipated the return of the private portions of the same
original tapes which the Archivist was charged with obtaining.
Next, in the course of explaining why the Act was not
overbroad in seeking to achieve its objectives of public disclo-
sure relating to the Watergate affair, the Court observed:
It is true that among the voluminous materials to be
screened by archivists are some materials that bear no
relationship to any of these objectives (and whose prompt
return to [Nixon] is therefore mandated by s 104(a)(7)).
But these materials are commingled with other materials
whose preservation the Act requires....
Id. at 454. The parenthetical expression leaves no doubt that
s 104(a)(7) operates to mandate return of private materials
to Nixon. What is more, the Court in this passage expressed
its concern that government archivists (not the public) would
see private materials; the Court then indicated that one
element justifying the constitutionality of the Act despite this
exposure was the fact that under s 104(a)(7), private materi-
als were not to remain under government control, but were to
be "returned" to Nixon. Thus, the passage certainly under-
stands s 104(a)(7) to require the return to Nixon of private
material such that the material would not remain in govern-
ment hands.
The Court made this understanding of s 104(a)(7) still
more explicit in arguing that the Act's protection of privacy
was even greater than that afforded by the New York State
law protecting private medical information in state computers
upheld in Whalen v. Roe, 429 U.S. 589 (1977). The Court
reasoned:
Not only does the Act challenged here mandate regula-
tions similarly aimed at preventing dissemination of pri-
vate materials but, unlike Whalen, the Government will
not even maintain long-term control over such private
information; rather, purely private papers and record-
ings will be returned to [Nixon] under s 104(a)(7) of the
Act.
433 U.S. at 458-59 (emphasis added). The Court's unmistak-
able substantive understanding that the Government would
not maintain control over the private materials once they
were returned to Nixon establishes definitively that the Ar-
chivist must return all versions of the private material to
Nixon. The form of the Court's reasoning here further
supports this conclusion. The Court deliberately contrasted
the New York statute with the Act, explaining that the Act
was more protective of privacy. Both the New York law and
the Act protected private materials from the public, but the
former allowed the private material to remain permanently in
the hands of the State, while the latter denied the govern-
ment such long-term control over private material by requir-
ing its return to Nixon. This a fortiori analysis makes sense
only if the Act is interpreted to require that no copies of the
materials remain in government control.
C. This Court's Previous Interpretation of the Act and the
Regulations Thereunder
The text and structure of the Act, and the Supreme Court's
interpretation of it, suffice to establish that the Act requires
the return of all versions of private materials to the Nixon
estate. Nonetheless, it is worth observing that this court has
interpreted the Act and the regulations promulgated pursu-
ant to s 104 to the same effect. Pursuant to the Solomon
Agreement reached with Nixon, the Administrator adopted
regulations to facilitate screening of the tapes for identifica-
tion of private material and its return to Nixon. These
regulations specified that "[i]n processing the materials, the
archivists will give priority to segregating private or personal
materials and transferring them to their proprietary or com-
memorative owner...." 41 C.F.R. s 105-63.401(a) (1980);
later 36 C.F.R. s 1275.42(a) (1995) (now amended, see 36
C.F.R. s 1275.42(a)(1) (1997)). The regulations also stated
that the Administrator "will transfer sole custody and use of
those materials determined to be private or personal ... to
former President Nixon or his heirs...." 41 C.F.R. s 105-
63.401-3(a) (1980); later 36 C.F.R. s 1275.48(a) (1995) (now
amended, see 36 C.F.R. s 1275.48(a) (1997) (emphasis add-
ed)).
In Nixon v. Freeman, 670 F.2d 346 (D.C. Cir. 1982), we
upheld the constitutionality of regulations adopted pursuant
to the Solomon Agreement. There, we took note that
The parties [Nixon and the Administrator] are in agree-
ment that, once diary material is identified by means of
archival processing, the archivists must return the mate-
rial immediately to Mr. Nixon. The regulations require
no less, stating that the archivists, in processing the
materials, are to give priority to segregating and re-
turning the materials to their owner. 41 C.F.R. s 105-
63.401(a) (1980).
670 F.2d at 361. We also observed that "the regulations
charge the archivists to give priority to separating and re-
turning to Mr. Nixon 'private and personal materials.' " Id.
at 355. Although we noted that the Archivist had duplicated
the tapes, see id. at 353, nothing in our opinion in Nixon v.
Freeman indicated or assumed that the Archivist would re-
tain portions of tapes that included private material. The
regulations interpreted by the court did not mention such a
possibility. Thus, the references in our opinion to immediate
return suggest that we interpreted the Act and the regula-
tions promulgated thereunder to require return of all existing
versions of private material to Nixon.
D. The Plain Meaning of the Act
In sum, the meaning of the Act poses no real difficulty. As
the Supreme Court and this court always have understood it,
the Act requires that all copies of all materials deemed by the
Archivist to fulfill the definition adopted by the Archivist to
satisfy s 104(a)(7) be returned to President Nixon or his
heirs. This requirement of the Act still confers authority on
the Archivist to promulgate regulations specifying the stan-
dard by which s 104(a)(7) will be fulfilled; it also confers on
the Archivist the crucial discretion to determine what particu-
lar materials fulfill the definition. By these mechanisms, the
Act balances the potential conflict between the broad disclo-
sure necessary to restore public confidence in the wake of the
Watergate affair, and the legitimate privacy concerns of
President Nixon and those close to him.
At the same time, s 104 of the Act requires the Archivist to
regulate and make decisions in a manner consistent with the
statutory guidelines. It has been said that
statutory lists of decisionmaking factors rarely constitute
"a set of self-executing principles.... On the contrary,
those principles may overlap and may conflict, and where
this occurs, resolution is the task of the agency that is
expert in the field."
American Airlines, Inc. v. C.A.B., 495 F.2d 1010, 1018 (D.C.
Cir. 1974) (quoting Schaffer Transp. Co. v. United States, 355 U.S. 83, 92 (1957)). But here, as we have shown, the statuto-
ry factors in question do not conflict, because s 104(c) re-
solves the potential contradiction between s 101(a) and
s 104(a)(7).
The deference that might be appropriate in reviewing
regulations enacted pursuant to conflicting statutory instruc-
tions is not appropriate in analyzing regulations enacted
pursuant to consistent guidelines. Here, the statutory guide-
lines always consistently required that all versions of private
material be returned to President Nixon or his estate. Re-
quiring this complete return, as opposed to preserving ver-
sions of all portions of the tapes for eternity, was a policy
determination proper to Congress which Congress clearly
intended. This being the case, we are constrained to enforce
the will of Congress. See Chevron U.S.A. Inc. v. National
Resources Defense Council, 467 U.S. 837, 843 n.9 (1984) ("The
judiciary is the final authority on issues of statutory construc-
tion and must reject administrative constructions which are
contrary to clear congressional intent.").
E. Appellant's Chevron "Step Two" Argument
The Archivist seeks to argue that, under the second step of
Chevron, the statutory language before the court today is
sufficiently ambiguous to merit deference to the interpreta-
tion of the Archivist, the regulatory agent to whom adminis-
tration of the statute is entrusted. See Bell Atlantic Tel. Co.
v. FCC, 131 F.3d 1044, 1048-49 (D.C. Cir. 1997). But even if
the meaning of the statute were somehow unclear, the Archi-
vist would still be barred from interpreting the statute to
require retention of the private, historically insignificant por-
tions of the tapes. This is so because, on the record at hand,
such an interpretation could not possibly meet the test of
reasonableness required by Chevron. Or as then-Judge Ruth
Bader Ginsburg noted in Fedway Associates v. U.S. Trea-
sury, 976 F.2d 1416, 1424 (D.C. Cir. 1992), "we would have
ranked [the agency's] definition ... in this case 'unreason-
able' under the second part of the Chevron analysis even had
this court not come earlier to a confident conclusion regarding
Congress' intent under the first part of the Chevron analysis."
We need not focus unnecessarily on the question of wheth-
er the Archivist's interpretation falls afoul of congressional
intent under Chevron step one or is simply unreasonable
under Chevron step two. In either case we are satisfied that
it is not a permissible interpretation of the Act. However,
quite apart from the specific nature of the Archivist's pur-
ported reading, we are convinced that two major impediments
exist to the Archivist advancing and claiming deference for
any interpretation other than the straightforward one we
today endorse. These impediments are (1) the Archivist's
prior commitment, in a binding agreement, to returning
private material to Nixon, and (2) the Supreme Court's clear
interpretation of the Act.
First, as noted above, the regulations promulgated by the
Archivist for processing the private materials and identifying
private portions for return to Nixon were enacted pursuant to
the Solomon Agreement that the Administrator entered with
Nixon. See Solomon Agreement, J.A. 537-93. Those regula-
tions required segregation of "private or personal materials,"
41 C.F.R. s 105-63.401(a), the "sole custody and use" of
which would be transferred to Nixon, 41 C.F.R. s 105-
63.401-3(a), and were so interpreted by this court. See
Nixon v. Freeman, 670 F.2d at 361. The Solomon Agree-
ment also incorporated as an attachment "documents to be
included" in a Processing Manual which, according to the
Agreement, "explain[ed] the manner in which certain of the
regulations will be interpreted or applied." J.A. 537. Those
pieces of the Processing Manual constitute part of the Solo-
mon Agreement for the purposes of interpreting the regula-
tions. See WMATA v. Mergentime Corp., 626 F.2d 959, 962
n.3 (D.C. Cir. 1980) ("Reference in a contract to extraneous
writings renders them part of the agreement for the indicated
purposes."). The sections of the Processing Manual included
in the Agreement explicitly and repeatedly contemplate the
"return" of private documents or tapes to Nixon. See, e.g.,
J.A. 568, 572, 575.
More strikingly, the documents to be included in the Pro-
cessing Manual specify that when a processing archivist
determines that recorded material is private or personal,
the processing archivist shall immediately prepare for
the return of the document or tape and all duplicate
copies that are reasonably located. Should another copy
or copies of such document or tape subsequently surface,
it shall be returned at once without further archival
review.
J.A. 576. This description indicates in no uncertain terms
that the Archivist will return to Nixon all versions of private
material.
By the Agreement and the regulations, the Government
positively adopted an interpretation of the Act requiring
return of all versions of personal material to Nixon. The
Nixon estate had every good reason to assume that the
Solomon Agreement, which settled several disputed issues in
pending litigation, resulted in an enforceable arrangement as
against claims to the contrary by the Archivist. Indeed, the
Archivist does not claim that the agreement was ultra vires
and we have no doubt as to its meaning. Therefore, it would
be a bizarre result, especially at this late date, to allow the
Archivist to abrogate the parties' agreement by regulatory
fiat. Cf. Beo v. District of Columbia, 44 F.3d 1026, 1029 &
n.1 (D.C. Cir. 1995) (noting that individuals may gain constitu-
tional liberty interest in state of affairs specified first by
consent decree and subsequently extended through promul-
gation of regulations).
As a general matter, an agency may have the authority to
revise its regulations; however, it is highly doubtful that an
agency is entitled to claim deference for a particular statutory
interpretation where it has committed itself to a lawful,
contradictory interpretation by unmodified agreement with a
private party. Cf. Transohio Sav. Bank v. Director, Office of
Thrift Supervision, 967 F.2d 598, 614 (D.C. Cir. 1992) (ex-
pressing "concern" about applying Chevron deference to
agency interpretation of statute that will affect agreements
agency has entered).
A further difficulty with the Archivist's claim to Chevron
deference lies in the fact that, as demonstrated above, the
Supreme Court adopted an interpretation that, unlike that
proffered by the Archivist, required return of all versions of
the tapes to Nixon. See Nixon v. Administrator, 433 U.S. at
429, 454, 458-59. As a result, the Archivist is hard pressed to
defend an alternative interpretation--twenty years after the
Supreme Court has spoken, with no legislative amendments
to construe, and no purported "changed circumstances" justi-
fying a new statutory construction. See McClatchy Newspa-
pers, Inc. v. NLRB, 131 F.2d 1026, 1030 (D.C. Cir. 1997)
(suggesting that agency not entitled under Chevron to "alter"
Supreme Court's authoritative interpretations even if other-
wise permissible). See also Maislin Indus., U.S., Inc. v.
Primary Steel, Inc., 497 U.S. 116, 131 (1990) ("Once we have
determined a statute's clear meaning, we adhere to that
determination under the doctrine of stare decisis, and we
judge an agency's later interpretation of the statute against
our prior determination of the statute's meaning."). Even
assuming, arguendo, that the Act somehow admits of ambigu-
ity, the perceived ambiguity has been cured by judicial inter-
pretation. On this record, the Archivist is poorly placed to
demand Chevron deference.
III. Conclusion
For the foregoing reasons, we find that the regulations
promulgated by the Archivist prohibiting the return to Presi-
dent Nixon's estate of any part of the original tapes or master
copies are not in accordance with s 104(a)(7) of the Act.
Accordingly, the decision of the District Court is
Affirmed.
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