Cheney v. United States District Court for District of Columbia

17 Fla. L. Weekly Fed. S 447, 124 S. Ct. 2576, 159 L. Ed. 2d 459, 542 U.S. 367, 2004 U.S. LEXIS 4576, 72 U.S.L.W. 4567, 32 Media L. Rep. (BNA) 2121
CourtSupreme Court of the United States
DecidedJune 24, 2004
Docket03-475
StatusPublished
Cited by1,788 cases

This text of 17 Fla. L. Weekly Fed. S 447 (Cheney v. United States District Court for District of Columbia) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cheney v. United States District Court for District of Columbia, 17 Fla. L. Weekly Fed. S 447, 124 S. Ct. 2576, 159 L. Ed. 2d 459, 542 U.S. 367, 2004 U.S. LEXIS 4576, 72 U.S.L.W. 4567, 32 Media L. Rep. (BNA) 2121 (U.S. 2004).

Opinions

Justice Kennedy

delivered the opinion of the Court.

The United States District Court for the District of Columbia entered discovery orders directing the Vice President and other senior officials in the Executive Branch to produce information about a task force established to give advice and make policy recommendations to the President. This case requires us to consider the circumstances under which a court of appeals may exercise its power to issue a writ of mandamus to modify or dissolve the orders when, by virtue of their overbreadth, enforcement might interfere with the [373]*373officials in the discharge of their duties and impinge upon the President’s constitutional prerogatives.

I

A few days after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG or Group). The Group was directed to “develo[p]... 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.” App. 156-157. The President assigned a number of agency heads and assistants — all employees of the Federal Government — to serve as members of the committee. He authorized the Vice President, as chairman of the Group, to invite “other officers of the Federal Government” to participate “as appropriate.” Id., at 157. Five months later, the NEPDG issued a final report and, according to the Government, terminated all operations.

Following publication of the report, respondents Judicial Watch, Inc., and the Sierra Club filed these separate actions, which were later consolidated in the District Court. Respondents alleged the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act (FACA or Act), 5 U. S. C. App. §2, p. 1.

FACA was enacted to monitor the “numerous committees, boards, commissions, councils, and similar groups [that] have been established to advise officers and agencies in the executive branch of the Federal Government,” § 2(a), and to prevent the “wasteful expenditure of public funds” that may result from their proliferation, Public Citizen v. Department of Justice, 491 U. S. 440, 453 (1989). Subject to specific exemptions, FACA imposes a variety of open-meeting and disclosure requirements on groups that meet the definition of an “advisory committee.” As relevant here, an “advisory committee” means

[374]*374“any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof. . . , which is—
“(B) established or utilized by the President,... except that [the definition] excludes (i) any committee that is composed wholly of full-time, or permanent part-time, officers , or employees of the Federal Government. .. .” 5 U. S. C. App. §3(2), p. 2.

Respondents do not dispute the President appointed only Federal Government officials to the NEPDG. They agree that the NEPDG, as established by the President in his memorandum, was “composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.” Ibid. The complaint alleges, however, that “non-federal employees,” including “private lobbyists,” “regularly attended and fully participated in non-public meetings.” App. 21 (Judicial Watch Complaint ¶ 25). Relying on Association of American Physicians & Surgeons, Inc. v. Clinton, 997 F. 2d 898 (CADC 1993) (AAPS), respondents contend that the regular participation of the non-Government individuals made them de facto members of the committee. According to the complaint, their “involvement and role are functionally indistinguishable from those of the other [formal] members.” Id., at 915. As a result, respondents argue, the NEPDG cannot benefit from the Act’s exemption under subsection B and is subject to FACA’s requirements.

Vice President Cheney, the NEPDG, the Government officials who served on the committee, and the alleged de facto members were named as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA’s requirements.

All defendants moved to dismiss. The District Court granted the motion in part and denied it in part. The court acknowledged FACA does not create a private cause of action. On this basis, it dismissed respondents’ claims against [375]*375the non-Government defendants. Because the NEPDG had been dissolved, it could not be sued as a defendant; and the claims against it were dismissed as well. The District Court held, however, that FACA’s substantive requirements could be enforced against the Vice President and other Government participants on the NEPDG under the Mandamus Act, 28 U. S. C. § 1361, and against the agency defendants under the Administrative Procedure Act (APA), 5 U. S. C. § 706. The District Court recognized the disclosure duty must be clear and nondiscretionary for mandamus to issue, and there must be, among other things, “final agency actions” for the APA to apply. According to the District Court, it was premature to decide these questions. It held only that respondents had alleged sufficient facts to keep the Vice President and the other defendants in the case. .

The District Court deferred ruling on the Government’s contention that to disregard the exemption and apply FACA to the NEPDG would violate principles of separation of powers and interfere with the constitutional prerogatives of the President and the Vice President. Instead, the court allowed respondents to conduct a “tightly-reined” discovery to ascertain the NEPDG’s structure and membership, and thus to determine whether the de facto membership doctrine applies. Judicial Watch, Inc. v. National Energy Policy Dev. Group, 219 F. Supp. 2d 20, 54 (DC 2002). While acknowledging that discovery itself might raise serious constitutional questions, the District Court explained that the Government could assert executive privilege to protect sensitive materials from disclosure. In the District Court’s view, these “issues of executive privilege will be much more limited in scope than the broad constitutional challenge raised by the government.” Id., at 55. The District Court adopted this approach in an attempt to avoid constitutional questions, noting that if, after discovery, respondents have no evidentiary support for the allegations about the regular participation by lobbyists and industry executives on the NEPDG, the [376]*376Government can prevail on statutory grounds. Furthermore, the District Court explained, even were it appropriate to address constitutional issues, some factual development is necessary to determine the extent of the alleged intrusion into the Executive’s constitutional authority. The court denied in part the motion to dismiss and ordered respondents to submit a discovery plan.

In due course the District Court approved respondents’ discovery plan, entered a series of orders allowing discovery to proceed, see CADC App. 238, 263, 364 (reproducing orders entered on Sept.

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17 Fla. L. Weekly Fed. S 447, 124 S. Ct. 2576, 159 L. Ed. 2d 459, 542 U.S. 367, 2004 U.S. LEXIS 4576, 72 U.S.L.W. 4567, 32 Media L. Rep. (BNA) 2121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheney-v-united-states-district-court-for-district-of-columbia-scotus-2004.