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CHENEY V. UNITED STATES DIST. COURT FOR D. C. (03-475)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/03-475.ZS.html
Argued April 27, 2004 -- Decided June 24, 2004
Opinion author: Kennedy
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The President established the National Energy
Policy Development Group (Group) to give him advice
and make recommendations on energy policy,
assigning a number of federal agency heads and
assistants to serve as Group members and
authorizing the Vice President, as Group chairman,
to include other federal officers as appropriate.
After the Group issued a final report and,
according to the Government, terminated all
operations, respondents filed these separate
actions, later consolidated in the District Court,
alleging that the Group had not complied with the
Federal Advisory Committee Act (FACA), which, inter
alia, imposes a variety of open-meeting and
disclosure requirements on entities meeting the
definition of "advisory committee." As relevant
here, such a committee is an entity or "subgroup
.... , which is ... established or utilized by the
President, ... exclud[ing] ... any committee ...
composed wholly of full-time, or permanent part-
time, [federal] officers or employees." 5 U.S.C.
App. sect. 2(B)(i).The complaint alleged that,
because nonfederal employees and private lobbyists
regularly attended and fully participated in the
Group's nonpublic meetings as de facto Group
members, the Group could not benefit from the
sect. 2(B) exemption and was therefore subject to
FACA's requirements. The suit sought declaratory
relief and an injunction requiring the defendants--
including the Vice President and the Government
officials serving on the Group--to produce all
materials allegedly subject to FACA's requirements.
Among its rulings, the District Court granted the
defendants' motion to dismiss as to some of them,
but denied it as to others. The Court held that
FACA's substantive requirements could be enforced
against the Vice President and the other Government
participants under the Mandamus Act, 28 U.S. C.
sect. 1361, and against the agency defendants under
the Administrative Procedure Act, 5 U.S.C. sect.
706. It deferred ruling on whether the FACA
disclosure duty was sufficiently clear and
nondiscretionary for mandamus to issue. It also
deferred ruling on the Government's contention that
to disregard the sect. 2(B) exemption and apply FACA
to the Group would violate separation-of-powers
principles and interfere with the President's and
Vice President's constitutional prerogatives.
Instead, the court allowed respondents to conduct a
"tightly-reined" discovery to ascertain the Group's
structure and membership, and thus to determine
whether the de facto membership doctrine applied.
While acknowledging that discovery itself might
raise serious constitutional questions, the court
explained that the Government could assert
executive privilege to protect sensitive materials
from disclosure. The court noted that if, after
discovery, respondents had no evidentiary support
for their allegations about de facto members in the
Group, the Government could prevail on statutory
grounds. Even were it appropriate to address
constitutional issues, the court explained, its
discovery orders would provide the factual
development necessary to determine the extent of
the alleged intrusion into the Executive's
constitutional authority. The court then ordered
respondents to submit a discovery plan, approved
that plan in due course, entered orders allowing
discovery to proceed, and denied the Government's
motion for certification under 28 U.S. C.
sect. 1292(b) with respect to the discovery orders.
Petitioners sought a writ of mandamus in the Court
of Appeals to vacate the discovery orders and for
other relief, but the court dismissed the mandamus
petition on the ground that alternative avenues of
relief remained available. Citing United States v.
Nixon, 418 U.S. 683, the court held that
petitioners, in order to guard against intrusion
into the President's prerogatives, must first
assert executive privilege with particularity in
the District Court. If the lower court sustained
the privilege, the appeals court observed,
petitioners would be able to obtain all the relief
they sought; but if the District Court rejected the
claim, mandamus might well be appropriate.So long
as the separation-of-powers conflict remained
hypothetical, the court held, it had no authority
to exercise the extraordinary remedy of mandamus.
Although acknowledging that the scope of
respondents' discovery requests was overly broad,
the appeals court nonetheless agreed with the
District Court that petitioners should bear the
burden of invoking executive privilege and of
objecting to the discovery orders with detailed
precision.
Held:
1. Respondents’ ; preliminary argument that
the mandamus petition was jurisdictionally out of
time is rejected. Respondents assert that, because
the Government's basic argument was one of
discovery immunity--i.e., it need not invoke
executive privilege or make particular objections
to the discovery requests--the mandamus petition
should have been filed within 60 days after the
District Court denied the motion to dismiss under
Federal Rule of Appellate Procedure 4(a)(1)(B). On
this theory, the last day for any filing in the
appeals court was September 9, 2002, whereas the
mandamus petition and notice of appeal were not
filed until November 7. However, Rule 4(a), by its
plain terms, applies only to the filing of a notice
of appeal. It is inapplicable to the mandamus
petition under the All Writs Act, 28 U. S C.
sect. 1651. Respondents' alternative argument that
the mandamus petition was barred by the equitable
doctrine of laches also fails. Laches might be a
bar where the petitioner slept on his rights and
especially if the delay was prejudicial. Chapman
v. County of Douglas, 107 U.S. 348, 355. Here,
however, the flurry of motions the Government filed
after the District Court denied the dismissal
motion overcomes r
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