In re Cheney

• Decision Date: 10 May 2005
• Docket Number: No. 02-5354.,02-5354.
• Citation: 406 F.3d 723
• Parties: In Re: Richard B. CHENEY, Vice President of the United States, et al., Petitioners
• Court: U.S. Court of Appeals — District of Columbia Circuit

406 F.3d 723

In Re: Richard B. CHENEY, Vice President of the United States, et al., Petitioners

No. 02-5354.

United States Court of Appeals, District of Columbia Circuit.

Argued En Banc January 27, 2005.

Decided May 10, 2005.

COPYRIGHT MATERIAL OMITTED

On Petition for Writ of Mandamus and Appeals from the United States District Court for the District of Columbia. (01cv01530) (02cv00631).

Paul D. Clement, Acting Solicitor General, U.S. Department of Justice, argued the cause for petitioners. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, United States Attorney, Edwin S. Kneedler, Deputy Solicitor General, Gregory G. Katsas, Deputy Assistant Attorney General, David B. Salmons and Douglas Hallward-Driemeier, Assistants to the Solicitor General, and Mark B. Stern, Thomas M. Bondy, and Michael S. Raab, Attorneys. Eric D. Miller, Attorney, and Shannen W. Coffin entered appearances.

Sanjay Narayan and Paul J. Orfanedes argued the cause for respondents Sierra Club and Judicial Watch, Inc. With them on the brief were Alex Levinson, David Bookbinder, Roger Adelman, and James F. Peterson.

David Overlook Stewart, Thomas M. Susman, and Stacy J. Dawson were on the brief of amici curiae American Association for Law Libraries, et al. in support of respondents.

Before: GINSBURG, Chief Judge, and EDWARDS, SENTELLE, RANDOLPH, ROGERS, TATEL, GARLAND, and ROBERTS, Circuit Judges.

RANDOLPH, Circuit Judge.

The Supreme Court vacated our decision in In re Cheney, 334 F.3d 1096 (D.C.Cir. 2003), and remanded the case for reconsideration of the government's petition for a writ of mandamus. Cheney v. U.S. Dist. Court, 542 U.S. 367, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). We granted the government's motion to rehear the case en banc. The Supreme Court's opinion, and our opinion, lay out the history of these proceedings in considerable detail. We will assume familiarity with both opinions and state only the essentials. The ultimate issue is whether this court should issue a writ of mandamus ordering the district court to dismiss the case.

I.

On January 29, 2001, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG) within the Executive Office of the President for the purpose of developing 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." The President named Vice President Cheney chairman and assigned cabinet secretaries and other federal officials to serve with the Vice President. Five months later, the NEPDG issued its final report to the President. As the President directed, the NEPDG ceased to exist as of "the end of fiscal year 2001," that is, September 30, 2001.

Judicial Watch and the Sierra Club filed actions, later consolidated, seeking NEPDG documents on the ground that the group was an "advisory committee" within the meaning of the Federal Advisory Committee Act, or FACA, 5 U.S.C.App. § 3. "`[A]dvisory committee' means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof" "established or utilized by the President" or an agency for the purpose "of obtaining advice." Id. § 3(2). Exempted from FACA are groups "composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government." Id. Subject to the Freedom of Information Act, 5 U.S.C. § 552, each FACA advisory committee must make publicly available its "records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by" the committee. 5 U.S.C.App. § 10(b).

The only individuals the President named to the NEPDG were federal officials; only federal officials signed the final report. To avoid the exemption in § 3(2) of FACA, Judicial Watch alleged, on information and belief, that non-federal employees "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. Sierra Club's allegations were somewhat different. It claimed that the NEPDG and "Task Force Sub-Groups were not composed wholly of full time officers or employees of the federal government," apparently because "[e]nergy industry executives, including multiple representatives of single energy companies, and other non-federal employees, attended meetings and participated in activities of [the NEPDG] and Task Force Sub-Groups." Sierra Club Compl. ¶ 19. These "Task Force Sub-Groups," the Sierra Club alleged, became FACA advisory committees when federal officials "participated in and exercised responsibility over meetings and other activities involving groups of energy industry executives and other non-federal employees, for the purpose of obtaining advice and recommendations on the Administration's national energy policy." Id. ¶ 18. As the Supreme Court noted, both Judicial Watch and the Sierra Club relied on Association of American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C.Cir.1993) ("AAPS"), to "contend that the regular participation of the non-Government individuals made them de facto members of the committee." Cheney v. U.S. Dist. Court, 124 S.Ct. at 2583.

The complaints invoked the Administrative Procedure Act, 5 U.S.C. § 706, and the Mandamus Act, 28 U.S.C. § 1361, and named as defendants the Vice President, the NEPDG, and the federal officials who served on the NEPDG. The Judicial Watch complaint also listed as defendants alleged de facto non-federal members of the Group. Plaintiffs sought a declaratory judgment and an injunction requiring the production of all materials subject to disclosure under FACA.

The government moved to dismiss, arguing, among other things, that FACA did not create a cause of action and that application of FACA to the NEPDG would infringe upon the President's constitutional authority to recommend legislation to Congress and to require opinions from department heads. The district court agreed that FACA did not create a private cause of action and dismissed Judicial Watch's claims against the non-federal defendants. Judicial Watch v. Nat'l Energy Policy Dev. Group, 219 F.Supp.2d 20, 34 (D.D.C. 2002). The court also dismissed the claims against the NEPDG because it no longer existed. Id. at 35. But the court refused to dismiss the mandamus actions against the Vice President. Id. at 44.¹ While acknowledging the force of the government's separation-of-powers argument, the court thought it should withhold decision on the constitutional question until further factual development. Id. at 54. The court then approved the plaintiffs' discovery plan. The government moved for a protective order, arguing that discovery against the Vice President would itself violate the separation of powers. With its motion, the government submitted an affidavit from the Deputy Assistant to the Vice President for Domestic Policy. On behalf of the Vice President, the government also moved for leave to file a motion for summary judgment. The court denied the government's motion for a protective order and refused to certify an appeal pursuant to 28 U.S.C. § 1292(b).

On the government's petition for a writ of mandamus against the district court, under the All Writs Act, 28 U.S.C. § 1651, a divided panel of this court held that although plaintiffs' discovery request was overly broad, the government had an alternative method of protecting itself because it could invoke executive privilege to prevent discovery. In re Cheney, 334 F.3d at 1105-06. The court therefore dismissed the government's petition. Id. at 1109. In so ruling, the court stated that if "limited discovery" revealed "some degree of participation by non-federal personnel, then the district court will have to decide whether that participation amounts to de facto membership" under AAPS. Id. at 1108.

The Supreme Court agreed that the discovery plan, approved by the district court, was "overly broad," 124 S.Ct. at 2590, and "unbounded in scope," id. at 2591, seeking "everything under the sky," id. at 2590. But the Court ruled that this court had "prematurely terminated its inquiry" into whether a writ of mandamus should issue, and had done so "without even reaching the weighty separation-of-powers objections raised in the case," and without exercising "discretion" to decide if the writ is appropriate. Id. at 2593. The Court therefore vacated the judgment and remanded the case, stating that this court "should be sensitive to requests by the Government for interlocutory appeals to reexamine, for example, whether the statute embodies the de facto membership doctrine" of AAPS. Id.

II.

In considering FACA's application to a committee within the Executive Office of the President, we must keep in mind that the statute does considerably more than require each "advisory committee" to disclose publicly documents that would otherwise remain confidential. Advisory committees must also file a charter; announce their upcoming meetings in the Federal Register; hold their meetings in public; and keep detailed minutes of each meeting. 5 U.S.C.App. § 9(c); §§ 10(a)(1), (2), (b) & (c); § 11. In addition, each such committee must "be fairly balanced in terms of the points of view represented" and may "not be inappropriately influenced by the appointing authority or by any special interest." Id. §§ 5(b)(2), (3) & (c). Although we do not reach the question whether applying FACA to Presidential committees such as the NEPDG would be constitutional, separation-of-powers considerations have an important bearing on the proper interpretation of the statute, see Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 466, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989), and on the district court's mandamus...