Walker v. Cheney

• Citation: 230 F.Supp.2d 51
• Decision Date: 09 December 2002
• Docket Number: No. CIV.A.02-0340 JDB.,CIV.A.02-0340 JDB.
• Parties: David M. WALKER, Comptroller General of the United States, Plaintiff, v. Richard B. CHENEY, Vice President of the United States and Chair, National Energy Policy Development Group, Defendant.
• Court: U.S. District Court — District of Columbia

230 F.Supp.2d 51

David M. WALKER, Comptroller General of the United States, Plaintiff, v. Richard B. CHENEY, Vice President of the United States and Chair, National Energy Policy Development Group, Defendant.

No. CIV.A.02-0340 JDB.

United States District Court, District of Columbia.

December 9, 2002.

As Amended December 13, 2002.

Carter G. Philips, Michael A. Nemeroff, Joseph R. Guerra, Gia B. Lee, Sidley Austin Brown & Wood LLP, Washington, DC, Anthony H. Gamboa, Gary L. Kepplinger, Lynn H. Gibson, Joan M. Hollenbach, Susan D. Sawtelle, General Accounting Office, Washington, DC, for Plaintiff.

Theodore B. Olson, Robert McCalllum, Jr., Paul D. Clement, Shannen W. Coffin, Thomas Millet, David B. Salmons, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

BATES, District Judge.

This case raises compelling statutory and constitutional questions concerning the authority of the Comptroller General, and hence Congress, to require the Vice President to produce information relating to the President's decision-making on national energy policy. Each side casts its position in core constitutional terms invoking competing theories of the proper balance of power between the Legislative and Executive Branches, and insists that its opponent seeks to "work a revolution" in separation of powers principles. The case thus engenders a struggle between the political branches that is historically unprecedented and that transcends both the specific information sought and the political identity of the Legislative and Executive Branch players involved.

Ultimately, however, equally fundamental separation of powers concerns relating to the restricted role of the Article III courts in our constitutional system of government ordain the outcome here. The parties agree that no court has ever before granted what the Comptroller General seeks — an order that the President (or Vice President) must produce information to Congress (or the Comptroller General). Because the Comptroller General does not have the personal, concrete, and particularized injury required under Article III standing doctrine, either himself or as the agent of Congress, his complaint must be dismissed. Historically, the Article III courts have not stepped in to resolve disputes between the political branches over their respective Article I and Article II powers; this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.

I. BACKGROUND

David M. Walker, Comptroller General of the United States, brings this action against Richard B. Cheney, Vice President of the United States and Chair of the National Energy Policy Development Group ("NEPDG"), in furtherance of an investigation by the General Accounting Office ("GAO") into the NEPDG's composition and activities. The NEPDG was a task force established by President George W. Bush to gather information and make recommendations to him in the area of energy policy. The Comptroller General is the head of the GAO, and an agent of the Legislative Branch. Presently before the Court are the Comptroller General's motion for summary judgment and the Vice President's motion to dismiss.

A. The General Accounting Office and the Comptroller General

The GAO is "an instrumentality of the United States Government independent of the executive departments." 31 U.S.C. § 702(a) (2002). Congress created the GAO in 1921 in the belief that it "`needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations.'" See Bowsher v. Synar, 478 U.S. 714, 730, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (quoting H. Mansfield, The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939)). Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. Indeed, the Supreme Court in Bowsher v. Synar expressly found that the Comptroller General is subservient to Congress. See 478 U.S. at 730, 106 S.Ct. 3181.

Under statute, the Comptroller General is granted broad authority to carry out investigations and evaluations for the benefit of Congress. For example, 31 U.S.C. § 712 requires the Comptroller General to

(1) investigate all matters related to the receipt, disbursement, and use of public money;

(2) estimate the cost to the United States Government of complying with each restriction on expenditures of a specific appropriation in a general appropriation law and report each estimate to Congress with recommendations the Comptroller General considers desirable;

(3) analyze expenditures of each executive agency the Comptroller General believes will help Congress decide whether public money has been used and expended economically and efficiently (4) make an investigation and report ordered by either House of Congress or a committee of Congress having jurisdiction over revenue, appropriations, or expenditures; and

(5) give a committee of Congress having jurisdiction over revenue, appropriations, or expenditures the help and information the committee requests.

Section 717(b) of title 31 additionally requires the Comptroller General to "evaluate the results of a program or activity the Government carries out under existing law — (1) on the initiative of the Comptroller General; (2) when either House of Congress orders an evaluation; or (3) when a committee of Congress with jurisdiction over the program or activity requests the evaluation."

Since 1980, the Comptroller General has been able to enforce these investigatory powers by bringing a civil action in the United States District Court for the District of Columbia to require "the head of [an] agency to produce a record." § 716(b)(2). The instant case is, however, the first time the Comptroller General has ever done so. Prior to instituting such an action, the Comptroller General must follow a specific set of procedures. First, he must make a formal written request to the head of the relevant agency stating the authority for inspecting the records and the reason for the inspection. § 716(b)(1). If he is not given an opportunity to inspect the records within 20 days, he may file a report with the President, the Director of the Office of Management and Budget ("OMB"), the Attorney General, the head of the agency, and Congress. Id. He must then wait another 20 days before initiating a lawsuit. § 716(b)(2)(A).

Even when he has followed these procedures, the Comptroller General cannot necessarily bring a suit. Section 716(d)(1) precludes a civil action for access to records in three situations: (A) where the records at issue relate to activities that have been designated by the President as foreign intelligence or counterintelligence activities; (B) where a specific statute exempts the records from disclosure; or (C) where, within 20 days of filing of the Comptroller General's report under § 716(b)(1), the President or the Director of OMB "certifies to the Comptroller General and Congress that a record could be withheld under section 552(b)(5) or (7) of title 5 and disclosure reasonably could be expected to impair substantially the operations of the Government."

Over the decades, the GAO has conducted thousands of investigations and evaluations of federal programs and activities, resulting in thousands of reports to Congress. See Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Mem. Supp. Summ. J.") at 15. The GAO's investigations have extended to White House operations issues, including personnel practices, alleged abuses of executive travel, and information management systems. GAO probes have also touched upon the Executive Branch's policy-related activities, with reviews of, for example, a White House task force to promote passage of permanent normal trade relations with China and an advisory committee established by President Reagan with respect to the H.I.V. epidemic. See id. at 15-16.

B. The Investigation of the NEPDG

The NEPDG was created by President Bush on January 29, 2001, "to develop a national energy policy designed to help the private sector, and as necessary and appropriate Federal, State, and local governments, promote dependable, affordable, and environmentally sound protection and distribution of energy." Compl., Ex. A at 2. In his memorandum establishing the NEPDG, President Bush directed the NEPDG "to gather information, deliberate, and ... make recommendations to the President." Id. The NEPDG was to be comprised of the Vice President, the Secretary of the Treasury, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Transportation, the Secretary of Energy, the Director of the Federal Emergency Management Agency, the Administrator of the Environmental Protection Agency, the Assistant to the President and Deputy Chief of Staff for Policy, the Assistant to the President for Economic Policy, and the Assistant to the President for Intergovernmental Affairs, as well as other officers of the federal government invited by the Vice President to participate (including the Chairman of the Federal Energy Regulatory Commission and the Secretary of State). Id. at 1-2. The Vice President was charged with presiding at the NEPDG's meetings, directing its work, and establishing, as appropriate, subordinate working groups. Id. at 2. President Bush also directed that the Department of Energy provide funding for the NEPDG to the maximum extent permitted by law and consistent with the need for funding determined by the Vice President after consultation with the Secretary of Energy. Id. at 2. In May 2001, the NEPDG issued a public report that recommended a set of policies, including proposed legislation, that was approved by the President as the National Energy Policy. See "Reliable, Affordable, and...