In re Cheney

Decision Date08 July 2003
Docket NumberNo. 02-5354.,No. 02-5355.,No. 02-5356.,02-5354.,02-5355.,02-5356.
Citation334 F.3d 1096
PartiesIn re: Richard B. CHENEY, Vice President of the United States, et al., Petitioners.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (No. 01cv01530) (No. 02cv00631) (No. 02cv01530).

On Petition for Writ of Mandamus.

Gregory G. Katsas, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the emergency petition for writ of mandamus were Theodore B. Olson, Solicitor General, Paul D. Clement, Deputy Solicitor General, Shannen W. Coffin, Deputy Assistant Attorney General, Mark Stern, Michael S. Raab, Douglas Hallward-Driemeier, and Eric D. Miller, Attorneys.

Larry E. Klayman and Sanjay Narayan argued the cause for appellees. With them on the response were David G. Bookbinder, Alex Levinson, and Roger M. Adelman.

Before: EDWARDS, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge RANDOLPH.

TATEL, Circuit Judge:

The Vice President of the United States and others, all defendants in this suit under the Federal Advisory Committee Act, petition for a writ of mandamus vacating the district court's discovery orders, directing the district court to rule on the basis of the administrative record, and ordering dismissal of the Vice President as a party. Petitioners, however, have failed to satisfy the heavy burden required to justify the extraordinary remedy of mandamus: Their challenges to the district court's legal rulings can be fully considered on appeal following final judgment, and their claims of harm can, at least at this stage of the litigation, be fully cured in the district court. We therefore dismiss the petition. The Vice President has also filed an interlocutory appeal from the district court's rulings. We lack jurisdiction to entertain that appeal: The collateral order doctrine does not apply, nor does United States v. Nixon, where the Supreme Court entertained an interlocutory appeal because, unlike here, the district court had rejected a claim of executive privilege.


Shortly after his inauguration, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG), a task force charged with "develop[ing] ... a national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future." Mem. Establishing National Energy Policy Development Group, Jan. 29, 2001. Established within the Office of the President and chaired by Vice President Richard B. Cheney, the task force consisted of six cabinet secretaries, as well as several agency heads and assistants to the President. Id. The memorandum authorized the Vice President to invite "other officers of the Federal Government" to participate "as appropriate." Id. Five months later, the NEPDG issued a final report recommending a set of energy policies. See NATIONAL ENERGY POLICY DEVELOPMENT GROUP, NATIONAL ENERGY POLICY: REPORT OF THE NATIONAL ENERGY POLICY DEVELOPMENT GROUP (2001), available at http://www.

On July 16, 2001, Judicial Watch, a nonprofit organization that seeks "to promote and protect the public interest in matters of public concern," Second Am. Compl. ¶ 3 (Judicial Watch Compl.), filed suit in the United States District Court for the District of Columbia against the NEPDG, the Vice President, other federal officials, and several private individuals, alleging that the NEPDG had failed to comply with the procedural requirements of the Federal Advisory Committee Act (FACA), 5 U.S.C.App. 2. Enacted to "control the growth and operation of the `numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government,'" Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 902-03 (D.C.Cir.1993) (AAPS) (quoting 5 U.S.C.App. 2, § 2(a)), FACA requires advisory committees to make public all reports, records, or other documents used by the committee, provided they do not fall within any Freedom of Information Act exemptions. Central to this case, FACA section 3(2) exempts advisory committees "composed wholly of full-time officers or employees of the Federal Government." 5 U.S.C.App. 2, § 3(2)(iii).

Although the President appointed only federal government officials to the NEPDG and authorized the Vice President to add additional "federal officials," Judicial Watch alleges that "non-federal employees, including Thomas Kuhn, Kenneth Lay, Marc Racicot, Haley Barbour, representatives of the Clean Power Group, and other private lobbyists ..., regularly attended and fully participated in non-public meetings of the NEPDG as if they were members of the NEPDG, and, in fact, were members of the NEPDG." Judicial Watch Compl. ¶ 25; see AAPS, 997 F.2d at 915 (holding that the section 3(2) exemption does not apply if non-government officials' "involvement and role are functionally indistinguishable from those of the other members"). Brought pursuant to both the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the All Writs Act, 28 U.S.C. § 1361, the complaint sought, among other things, a judgment declaring the defendants to be in violation of FACA and an order directing them to provide plaintiffs "a full and complete copy of all records ... made available to or prepared for Defendant NEPDG," as well as "detailed minutes of each meeting of Defendant NEPDG ... that contain a record of persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all report[s] received, issued, or approved by Defendant NEPDG." Judicial Watch Compl. at 22.

Before proceedings commenced in the district court, the Sierra Club, a nonprofit group seeking "to practice and promote the responsible use of the Earth's resources and ecosystems," filed a virtually identical lawsuit in the United States District Court for the Northern District of California. Compl. ¶ 3. The Sierra Club's suit was subsequently transferred to the district court here and consolidated with Judicial Watch's.

All defendants moved to dismiss, arguing, among other things, that FACA does not authorize a private cause of action, that the Vice President cannot be sued under the APA, and that "[a]pplication of FACA to the NEPDG's operations would directly interfere with the President's express constitutional authority including his responsibility to recommend legislation to Congress and his power to require opinions of his department heads." Mem. in Support of Mot. to Dismiss at 3 (D.D.C. Mar. 8, 2002). Amplifying this latter point, defendants argued that "such an expansive reading of FACA would encroach upon the President's constitutionally protected interest in receiving confidential advice from his chosen advisers, an interest that is also rooted in the principle of separation of powers." Id. Although the district court agreed that no private cause of action exists under FACA and recognized that the Vice President cannot be sued under the APA, it ruled that FACA could be enforceable through mandamus. Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 219 F.Supp.2d 20, 42 (D.D.C.2002). Relying on the "fundamental principle of constitutional interpretation that a court should not pass on any constitutional questions that are not necessary to determine the outcome of the case or controversy before it," id. at 45, the district court deferred ruling on the government's separation of powers claim, explaining that "after discovery, the government may prevail on summary judgment on statutory grounds without the need for this Court to address the constitutionality of applying FACA [to the Vice President]," id. at 54-55. The court observed that, "while discovery in this case may raise some constitutional issues, those issues of executive privilege will be much more limited in scope than the broad constitutional challenge raised by the government here." Id. at 55.

After denying defendants' motion to dismiss, the district court approved plaintiffs' discovery plan and directed the government to "fully comply with the[] requests," "file detailed and precise objections to particular requests," or "identify and explain their invocations of privilege with particularity." Order Approving Disc. Plan at 2 (D.D.C. Aug. 2, 2002). In response and on behalf of all federal defendants except the Vice President, the government produced some 36,000 pages of documents. On behalf of the Vice President, the government filed a motion for a protective order, arguing that discovery against the Vice President would violate the separation of powers and seeking permission to file a motion for summary judgment based on the "administrative record." According to the government, the administrative record consists of the President's memorandum creating the NEPDG, the NEPDG's final report, and an affidavit by Karen Knutson, Deputy Assistant to the Vice President for Domestic Policy. Submitted with the motion for a protective order, Ms. Knutson's affidavit declares that "[t]o the best of my knowledge, no one other than the officers of the Federal Government who constituted the NEPDG, the Federal employees whom they chose from their respective departments, agencies and offices to accompany them (all of whom were full-time Federal employees), and the Office of the Vice President personnel set forth above, attended any of the [NEPDG] meetings." Knutson Aff. ¶ 10.

Although the district court acknowledged that "[i]n APA cases, discovery is normally...

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