Richard M. Nixon, Individually and As the Former Presidentof the United States, et al. v. Arthur F. Sampson, Individually and As Administrator Ofgeneral Services, et al.appeal of Reporters Committee for Freedom of the Press Etal. (two Cases).the Reporters Committee for Freedom of the Press et al., Appellants, v. Arthur F. Sampson, Individually and As Administrator Ofgeneral Services.lillian Hellman et al. v. Arthur F. Sampson, Individually and As Administrator Ofgeneral Services, et al, 580 F.2d 514 (D.C. Cir. 1978)

Section 101(b) (1) of the Presidential Recordings and Materials Preservation Act (the Act), Pub. L. 93-526 (1974), 88 Stat. 1695, 44 U.S.C. § 2107 (Supp. V 1975), directs the Administrator of General Services (the Administrator) to take custody of all "papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. Nixon." Appellee, Rose Mary Woods, sought to remove from the Administrator's custody approximately fifty cartons of material that she claimed was her personal property. Appellants, Reporters Committee for Freedom of the Press, et al., (Reporters Committee), sought to prevent the removal of this material until regulations implementing the Act had been promulgated by the Administrator and accepted by Congress.¹  On December 16, 1977, while this case was under consideration, these regulations became effective. 42 Fed.Reg. 63626 (1977).² 

* The background of this litigation is extraordinarily complex. Soon after leaving office Mr. Nixon entered into an agreement with the Administrator of General Services, Arthur F. Sampson, concerning the disposition of the former's "Presidential historical materials."³  Mr. Nixon later brought suit in district court to enforce the implementation of this agreement. Mr. Sampson was a named defendant. Shortly thereafter two groups of plaintiffs, of which Reporters Committee was one, brought suit seeking to have these materials declared the property of the United States government, to enjoin their transfer to Mr. Nixon, and to gain access to them under the Freedom of Information Act. In one action Mr. Nixon was a named defendant, in another he was permitted to intervene. These two actions were ultimately consolidated with the suit brought by Mr. Nixon; the Watergate Special Prosecutor and Jack Anderson, a newspaper columnist, were both permitted to intervene in Mr. Nixon's suit, the former as a defendant and the latter as a plaintiff. See Nixon v. Administrator of General Services, 408 F. Supp. 321, 331-32 (D.D.C. 1976); Nixon v. Sampson, 389 F. Supp. 107 (D.D.C. 1975). These actions came collectively to be known as the "consolidated cases."

On December 20, 1974, the day after the Act was signed into law, Mr. Nixon brought suit challenging its constitutionality. We stayed all action in the consolidated cases until the Act's constitutionality could be determined. Nixon v. Richey, 168 U.S.App.D.C. 172, 513 F.2d 430 (1975). However, on August 7, 1975, appellee Rose Mary Woods sought leave to intervene in the consolidated cases in order to recover what she claimed were her personal papers. On September 2, we granted leave to intervene and modified our stay "to enable the District Court, in its discretion, to enter an order . . . to authorize the return of the materials sought, nothing herein contained being intended to intimate any view as to the disposition by the District Court of any applications which may be made to it." Joint Appendix (J.A.) at 35.

Ms. Woods subsequently intervened in the consolidated cases. She claimed that Ms. Mary M. Filippini, Administrative Assistant for the Office of Presidential Materials at the General Services Administration and prior to that a staff member of the Office of Presidential Libraries at the National Archives and Records Service, had examined certain materials and prepared a "List F" containing items that were "solely the personal materials and papers" of Ms. Woods.⁴  Ms. Woods sought to recover the approximately fifty cartons of material enumerated in List F. She appended an affidavit of Ms. Filippini in which the archivist stated that she had personally inspected and compiled List F, and that:

Basing my judgment on the same criteria used in collecting Nixon Presidential Materials from other White House staff members and staff offices prior to and since August 9, 1974, I find none of the items described on "List F" . . . to be "Presidential historical materials of Richard M. Nixon."

J.A. at 89. Ms. Filippini appended to her affidavit an "Exhibit I" containing the "criteria" she had used in compiling List F. This Exhibit I was a White House memorandum of August 9, 1974, stating that:

Personal files include correspondence unrelated to any official duties performed by the staff member; personal books, pamphlets and periodicals; daily appointment books or log books; folders of newspapers or magazine clippings; and copies of records of a personnel nature relating to a person's employment or service.

J.A. at 91. "Personal files" were those not considered to be historical materials.

Defendant Sampson answered Woods' complaint and stated that he did not oppose her requested relief. No opposition was voiced by the Special Prosecutor or by any other defendant. Reporters Committee, however, a plaintiff in the case below, filed a "Protective Answer" opposing Woods' complaint and denying that the materials sought were her personal property. J.A. at 116-18.

On November 19, Ms. Woods filed a motion for judgment on the pleadings stating that the contents of the Filippini affidavit were admitted by defendant Sampson "and remain uncontroverted." J.A. at 125-26. Despite the opposition of Reporters Committee, the district court granted Ms. Woods' motion on December 2, 1975. It noted specifically that "Defendants do not oppose the relief sought by Plaintiff-Intervenor." J.A. at 149.

Reporters Committee appealed. Defendant Sampson has filed a brief in this court arguing that the district court's decision should be upheld.⁵ 

On March 25, 1976, before oral argument was held on appeal, this court ordered the parties to begin negotiations so as "to stipulate those materials as to which no controversy exists." We took this step because it appeared "that at least a substantial number of the materials enumerated in List F are so plainly the personal and private property of appellee Woods and so lacking in historical or commemorative value or significance as to preclude any colorable claim that they fall within the reach of Section 101 of the Presidential Recordings and Materials Preservation Act. . . . "

By the time of oral argument well over half of the materials on List F had been released to Ms. Woods because the parties had stipulated that they were so plainly lacking in historical significance as to preclude any colorable claim that they fell within the reach of Section 101 of the Act.⁶ 

II

Section 104(a) of the Materials Preservation Act, Supra note 1, directs the Administrator to "submit to each House of the Congress a report proposing and explaining regulations that would provide public access" to the Presidential historical materials controlled by the Act. These regulations, however, were not in effect when Rose Mary Woods intervened in the consolidated cases to obtain the return of what she claimed were her personal papers. The ruling of the district court was thus that the affidavit of Ms. Filippini was sufficient, in the absence of such regulations, to establish that the materials sought by Ms. Woods were not within the purview of the Act. The regulations subsequently promulgated, however, set forth standards defining more fully the nature of the materials controlled by the Act and created an elaborate procedural system for the evaluation and transfer of materials according to these standards. 42 Fed.Reg. 63626 (1977). We need not reach the question whether the establishment of this procedural system, by itself, constitutes sufficient grounds now to dismiss Ms. Woods' suit, See Bradley v. School Board of City of Richmond, 416 U.S. 696, 720, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974); Nixon v. Administrator of General Services, 433 U.S. 425, 459 n. 22, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977), since we hold that the criteria used by Ms. Filippini in compiling List F were not in accordance with the standards required by the Act.

We view the essential question in this case to be the meaning of the "Presidential historical materials" over which Section 101(b) (1) of the Act directs the Administrator of General Services to acquire custody.⁷  Section 101(b) (2) states that, "(f)or purposes of this subsection, the term 'historical materials' has the meaning given it by section 2101 of Title 44, United States Code." Appellee argues that § 101(b) (2) thus "adopts the standard of the archival art current at the time of the Act (December 19, 1974) without reference to regulations." Brief for appellee at 21. Since appellee claims that Ms. Filippini used this standard in compiling List F, she urges that the district court's judgment be affirmed.

Section 2101 of Title 44 of the United States Code, however, defines historical materials to include "books, correspondence, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, motion pictures, sound recordings, and other objects or materials having historical or commemorative value." While this definition details with some particularity the meaning of the term "materials," it provides little if any assistance in deciding which of these materials are of historical value. The deliberate vagueness of the section suggests that Congress intended this decision to be made in the context of surrounding circumstances, and specifically with reference to the purposes of the Materials Preservation Act. This conclusion is supported by the legislative history of the Act, which also indicates that Congress intended the Administrator's regulations to develop guidelines, based in part on the experiences of Watergate, to determine which materials would be controlled by the Act.⁸ 

The criteria Ms. Filippini used to compile List F, however, were developed before the passage of the Act and before the promulgation of the Administrator's regulations. Exhibit I, which Ms. Filippini states sets forth the criteria she used in gathering List F, is dated August 9, 1974;⁹  indeed, Ms. Filippini is quite frank in stating that her judgment was based "on the same criteria used in collecting Nixon Presidential Materials from other White House staff members and staff offices prior to and since August 9, 1974." J.A. at 89. We find that these criteria are not consonant with the purposes of the Materials Preservation Act. For example, § 104(a) (1) of the Act speaks of "the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term Watergate . . .." See Nixon v. Administrator of General Services, 433 U.S. 425, 452-53, 97 S. Ct. 2777, 2795, 53 L. Ed. 2d 867 (1977). Many of the abuses of power involved in Watergate were "unrelated to any official duties," yet under the criteria of Exhibit I it appears that reference to such activities in correspondence would be labeled "personal" and found to be not Presidential historical materials. Similarly, the criteria employed by Ms. Filippini would apparently categorize as personal and not Presidential historical materials the "daily appointment books or log books" that constituted such important evidence in the Watergate affair. Moreover § 104(a) (6) of the Act speaks of "the need to provide public access to those materials which have general historical significance." The criteria of Exhibit I do not articulate this concern.

Our conclusion that the criteria of Exhibit I are not compatible with the purposes of the Act is supported by the regulations promulgated by the Administrator. Under these regulations the Administrator will specifically retain control over materials related to abuses of governmental power popularly identified under the generic term "Watergate."¹⁰  See 42 Fed.Reg. 63628 (1977) (to be codified in 41 C.F.R. § 105-63.401-5). The regulations also have a more inclusive definition of "Presidential historical materials" than that expressed in Exhibit I:

(a) Presidential historical materials. The term "Presidential historical materials" (also referred to as "historical materials" and "materials") shall mean all papers, correspondence, documents, pamphlets, books, photographs, films, motion pictures, sound and video recordings, machine-readable media, plats, maps, models, pictures, works of art, and other objects or materials made or received by former President Richard M. Nixon or by members of his staff in connection with his constitutional or statutory duties or political activities as President and retained or appropriated for retention as evidence of or information about these duties and activities. Excluded from this definition are documentary materials of any type that are determined to be the official records of an agency of the Government; private or personal materials; stocks of publications, processed documents, and stationery; and extra copies of documents produced only for convenience of reference, when they are clearly so identified.

(b) Private or personal materials. The term "private or personal materials" shall mean those papers and other documentary or commemorative materials in any physical form relating solely to a person's family or other nonpublic activities, and having no connection with his constitutional or statutory duties or political activities as President or as a member of the President's staff.

42 Fed.Reg. 63626 (1977) (to be codified in 41 C.F.R. § 105-63.104(a), (b)). Whereas the criteria of Exhibit I would require that that "correspondence unrelated to any Official duties" be returned to Ms. Woods, the regulations would classify as "private or personal materials" only those "having no connection with . . . constitutional or statutory duties or Political activities . . . ." The "daily appointment books or log books" that the criteria of Exhibit I would categorize as personal would, under the regulations, be considered at least prima facie Presidential historical materials, since they constitute "evidence of or information about" such constitutional or statutory duties or political activities.

The criteria used in compiling List F thus not having been in accordance with statutory standards, the district court was incorrect in granting judgment on the pleadings. Since an elaborate regulatory scheme has now been established by the Administrator, the most appropriate disposition of this case is to dismiss appellee's suit without prejudice, and to remand her to her administrative remedies. Should those remedies prove unavailing, she will be able at that time to seek judicial review under § 105(a) of the Act.¹¹  Since appellee will not be harmed by dismissal, there is no reason for the district court to retain jurisdiction. See United States v. Michigan National Corp., 419 U.S. 1, 5, 95 S. Ct. 10, 42 L. Ed. 2d 1 (1974).

The judgment of the district court is therefore reversed and the case is dismissed without prejudice.

So ordered.