IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.
501 School Street, SW, Suite 725
Washington, DC 20024
Plaintiff,
SECOND AMENDED COMPLAINT
v.
Civil
Action No. 01-1530 (EGS)
NATIONAL ENERGY POLICY
DEVELOPMENT GROUP
Office of the Vice President
Eisenhower Executive Office Building
Washington, DC 20501
and
THE HON. RICHARD B. CHENEY
Vice President of the United States
of America
Eisenhower Executive Office Building
Washington, DC 20501
and
PAUL O’ NEILL,
Secretary of the Treasury
1500
Pennsylvania Avenue, NW
Washington, DC 20220
and
GAIL NORTON,
Secretary of the Interior
1849 C
Street, NW
Washington, DC 20240
and
ANN M. VENEMAN,
Secretary of Agriculture
1400
Independence Avenue, SW
Washington,
D.C. 20250,
and
DONALD EVANS,
Secretary of Commerce
14th
Street and Constitution Avenue, NW
Washington, DC 20230
and
NORMAN MINETA,
Secretary of Transportation
400
Seventh Street, SW
Washington, DC 20590
and
SPENCER ABRAHAM,
Secretary of Energy
Forrestal
Building
1000
Independence Avenue, SW
Washington, DC 20585
and
COLIN POWELL,
Secretary of State
Harry S. Truman Bldg.
2201 C Street, NW
Washington, DC 20520
and
JOSEPH M. ALLBAUGH,
Director, Federal Emergency
Management Agency
Federal
Center Plaza
500 C
Street, SW
Washington,
DC 20472
and
CHRISTINE TODD WHITMAN,
Administrator, Environmental Protection Agency
1200
Pennsylvania Avenue, NW
Washington,
DC 20004
and
PATRICK H. WOOD, III,
Chairman, Federal Energy Regulatory
Commission
888 First Street, NE
Washington, DC 20426
and
MITCHELL E. DANIELS, Jr.,
Director, Office of Management and Budget
Eisenhower
Executive Office Building
17th
Street and Pennsylvania Avenue, NW
Washington, DC 20503
and
JOSHUA BOLTON,
Assistant to the President and Deputy
Chief of Staff for Policy
Executive Office of the President
1600 Pennsylvania Ave., NW
Washington, DC 20500
and
LARRY LINDSEY,
Assistant to the President for Economic Policy
Executive Office of the President
1600 Pennsylvania Ave., NW
Washington, DC 20500
and
MARK RACICOT
c/o Republican National Committee
310 First Street, SE
Washington, DC 20003
and
HALEY BARBOUR
c/o Barbour, Griffith & Rodgers
1275 Pennsylvania Avenue, NW
Washington, DC 20004
and
KENNETH LAY
Houston, Texas
and
THOMAS KUHN
c/o Edison Electric Institute
701 Pennsylvania Avenue, NW
Washington, DC 20004
and
JOHN AND JANE DOE NOS. 1-99,
Certain Unknown Non-Federal Employees,
and/or Members of the National Energy
Policy Development Group,
Defendants.
__________________________________________
SECOND AMENDED COMPLAINT
Plaintiff, Judicial Watch, Inc., pursuant to
the Court’s Order of May 23, 2002, hereby files this second amended complaint
for compliance with the Federal Advisory Committee Act, 5 U.S.C. App. 2
(“FACA”), the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”), and
the Freedom of Information Act, 5 U.S.C. § 552 et seq. (“FOIA”).
Plaintiff also seeks a writ of mandamus and a declaratory judgment pursuant to
28 U.S.C. §1361 and 28 U.S.C. §§ 2201 and 2202, respectively. As grounds
therefor, Plaintiff Judicial Watch, Inc., (“JW”) respectfully alleges as
follows:
JURISDICTION
AND VENUE
1. This court has jurisdiction over this
action pursuant to 28 U.S.C. § 1331 (action arising under the laws of the
United States), 28 U.S.C. § 1346(a)(2) (United States as defendant), 5 U.S.C. §
552(a)(4)(B) (FOIA), 28 U.S.C. §1361 (mandamus), 5 U.S.C. § 701 (APA).
2. Venue is proper in this district
pursuant to 5 U.S.C. § 552(a)(4)(B).
PARTIES
3. Plaintiff, whose principal place of
business is 501 School Street, SW, Suite 725, Washington, D.C. 20024, is organized as a non-profit corporation
under the laws of the District of Columbia.
Plaintiff undertakes educational and other programs to promote and
protect the public interest in matters of public concern. To this end, Plaintiff requested certain
documents pursuant to the FACA and the FOIA and intends to disseminate the
requested information and documents to its supporters and benefactors, government
officials, appropriate news media, and to the American public at large. The information, access, and documents
Plaintiff seeks are likely to contribute significantly to the public’s
understanding of the operations and activities of Defendants. 4. Defendant
National Energy Policy Development Group (“NEPDG”) is an agency and entity of
the United States Government. Defendant
NEPDG was created by President George W. Bush and headed by Vice President
Richard B. Cheney to develop a national energy plan. Defendant NEPDG has its
principal place of business in Washington, DC.
Defendant NEPDG has possession of the information and documents to which
Plaintiff seeks access.
5. Defendant Richard B. Cheney (“Cheney”)
is the Vice President of the United States.
Defendant Cheney is the director of NEPDG and has possession of the
information and documents to which Plaintiff seeks access.
6. Defendant Paul O’Neill (“O’Neill”) is
Secretary of the Treasury. Defendant O’Neill is a member of NEPDG and has
possession of the information and documents to which Plaintiff seeks access.
7. Defendant Gail Norton (“Norton”) is
Secretary of the Interior. Defendant Norton is a member of NEPDG and has
possession of the information and documents to which Plaintiff seeks access.
8. Defendant Ann M. Veneman (“Veneman”) is
Secretary of Agriculture. Defendant Veneman is a member of NEPDG and has
possession of the information and documents to which Plaintiff seeks access.
9. Defendant Donald Evans (“Evans”) is
Secretary of Commerce. Defendant Evans is a member of NEPDG and has possession
of the information and documents to which Plaintiff seeks access.
10. Defendant Norman Mineta (“Mineta”) is
Secretary of Transportation. Defendant Mineta is a member of NEPDG and has possession
of the information and documents to which Plaintiff seeks access.
11. Defendant Spencer Abraham (“Abraham”) is
Secretary of Energy. Defendant Abraham is a member of NEPDG and has possession
of the information and documents to which Plaintiff seeks access.
12. Defendant Colin Powell (“Powell”) is
Secretary of State. Defendant Powell is a member of NEPDG and has possession of
the information and documents to which Plaintiff seeks access.
13. Defendant Joseph M. Allbaugh (“Allbaugh”)
is the Director of the Federal Emergency Management Agency. Defendant Allbaugh
is a member of NEPDG and has possession of the information and documents to
which Plaintiff seeks access.
14. Christine Todd Whitman (“Whitman”) is the
Administrator of the Environmental Protection Agency. Defendant Whitman is a
member of NEPDG and has possession of the information and documents to which
Plaintiff seeks access.
15. Patrick H. Wood, III, (“Wood”) is the
Chairman of the Federal Energy Regulatory Commission. Defendant Wood is a
member of NEPDG and has possession of the information and documents to which
Plaintiff seeks access.
16. Mitchell E. Daniels, Jr., (“Daniels”) is
the Director of the Office of
Management and Budget. Defendant Daniels is a member of NEPDG and has
possession of the information and documents to which Plaintiff seeks access.
17. Joshua Bolton (“Bolton”) is Assistant to
the President and Deputy Chief of Staff for Policy. Defendant Bolton is a
member of NEPDG and has possession of the information and documents to which
Plaintiff seeks access.
18. Larry Lindsey (“Lindsey”) is Assistant to
the President for Economic Policy. Defendant Lindsey is a member of NEPDG and
has possession of the information and documents to which Plaintiff seeks
access.
19. Mark Racicot currently is Chairman of the
Republican National Committee, 310 First Street, S.E. , Washington, DC 20003 and has
served as a lobbyist for Enron Corporation.
On information and belief, Defendant Racicot is a member of NEPDG and
has possession of the information and documents to which Plaintiff seeks
access.
20. Haley Barbour is a lobbyist for electric
utilities at Barbour, Griffith & Rodgers, 1275 Pennsylvania Avenue, N.W.,
Washington, DC 20004. Defendant Barbour formerly served as
Chairman of the Republican National Committee.
On information and belief, Defendant Barbour is a member of NEPDG and
has possession of the information and documents to which Plaintiff seeks
access.
21. Kenneth Lay is the former Chairman of
Enron Corporation (“Enron”), of Houston, Texas. On
information and belief, Defendant Lay is a member of NEPDG and has possession
of the information and documents to which Plaintiff seeks access.
22. Thomas Kuhn is the President of the
Edison Electric Institute, 701 Pennsylvania Avenue, N.W., Washington, DC 20004.
On information and belief, Defendant Kuhn is
a member of NEPDG and has possession of the information and documents to which
Plaintiff seeks access.
23. John and Jane Does Nos. 1-99 are
currently unknown, non-federal employees who are members of the NEPDG and have
possession of the information and documents to which Plaintiff seeks
access.
STATEMENT
OF FACTS
24. On January 29, 2001, President Bush
established the NEPDG, whose mission was to “develop a national energy policy
designed to help the private sector, and as necessary and appropriate Federal,
State and local government, promote dependable, affordable, and environmentally
sound promote dependable, affordable, and environmentally sound production and
distribution of energy.” President Bush
directed the NEPDG to “gather information, deliberate, and . . . make
recommendations to the President.”
25. On information and belief, non-federal
employees, including Thomas Kuhn, Kenneth Lay, Marc Racicot, Haley Barbour,
representatives of the Clean Power Group, and other private lobbyists (John and
Jane Does 1-99), 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.
26. Specifically, non-federal employees representing special energy interests, who donated
approximately $22.5 million into the Bush-Cheney 2000 presidential election
campaign, have reportedly enjoyed nearly unfettered access to and close contact
with the NEPDG, Vice President Cheney, and even President Bush himself. Thomas Kuhn, a leading Bush fundraiser and
president of the Edison Electric Institute, reportedly met with Vice President
Cheney. Kenneth Lay (“Lay”), the former
CEO of the now bankrupt Enron and a friend of President Bush, had a dinner
meeting with the President. See
Howard Fineman and Michael Isikoff, “Big Energy at the Table,” Newsweek,
May 14, 2001, attached hereto as Exhibit 1 at 18.
27. In March 2001, Lay reportedly also met
with Defendant Cheney to discuss energy policy. See Howard Fineman and Michael Isikoff, “A New Capitol
Clash,” Newsweek, February 11, 2002, attached as Exhibit 2. Bush administration officials subsequently
admitted to five additional meetings between Enron officials and Vice President
Cheney’s staff in March 2001. Id. In addition to these six meetings in March
2001, a top aide to Defendant Cheney, Andrew Lundquist, met with members of the
“Clean Power Group” -- a coalition of five power companies, including
Enron. Id.
28. In April 2001, Lay also reportedly met
with Defendant Cheney to discuss the Bush Administration’s response to the
California energy crisis. See
David Lazarus, “Memo Details Cheney-Enron Links,” San Francisco Chronicle,
January 30, 2002, attached as Exhibit 3.
During this meeting, Lay reportedly handed Cheney three page memorandum
urging federal authorities to refrain from imposing price caps or other
measures to stabilize electricity prices.
Id. Recommendations from
this memorandum subsequently became a part of the NEPDG’s proposed energy
plan. Id.
29. On May 3, 2001, former Montana Governor
Marc Racicot and former Republican Party Chairman Haley Barbour, both of whom
serve or have served as lobbyists for electric utilities, attended a NEPDG
meeting chaired by Vice President Cheney.
See Michael Weisskopf and Adam Zagorin, “Getting the Ear of Dick
Cheney,” Time, February 11, 2002, attached as Exhibit 4. At that time, Barbour also was involved
heavily in fundrasing activities on behalf of President Bush. Id. Racicot currently is the Chairman of the
Republican Party.
30. On May 4, 2001, David S. Addington, Counsel
to Vice President Cheney, admitted in a letter to Reps. W.J. “Billy” Tauzin and
Rep. John Dingell of the House Committee on Energy and Commerce, and Reps. Dan
Burton and Henry Waxman of the Committee on Government Reform, that during
so-called “stakeholder meetings,” staff members of NEPDG held “have met with
many individuals who are not federal employees to gather information
relevant” to the NEPDG’s work. See
May 4, 2001 Letter from David S. Addington, attached as Exhibit 5 (emphasis
added). All of the NEPDG so-called
“stake-holder meetings” with non-governmental parties are covered by the FACA
and the FOIA.
31. Vice President Cheney has been evasive in
describing the staffing and operations of the NEPDG. During a July 25, 2001 on the ABC television program “Nightline,”
Vice President Cheney admitted that the NEPDG
met with members of private organizations and/or companies regarding
energy policy, but failed to identify the names of those individuals:
[TED] KOPPEL: You've made
reference to the enormous amount of experience that you bring to this job. So,
I have to ask you, as someone who knows Washington as well as you do, and who
knows that the one thing that drives Congress crazy, the one thing that drives
the press crazy, the one thing that is always going to be trouble is secrecy.
Vice Pres. CHENEY: Mm-hmm.
KOPPEL: Well, why did you
run your--your energy study, your energy meetings the way that you did? Why to
this day haven't you revealed who participated in those meetings and what they
had to tell you?
Vice Pres. CHENEY: Well,
that's simply not accurate, Ted. There's been this charge that it was run in
secret. But it was run the same way we do everything else with respect to policy.
Same way we make economic policy or education policy. It was a group of Cabinet
officials and agency heads. This is the report we produced. We published
thousands of them. It has not been secret. The folks that were responsible for
putting it together are all listed right up here in the front. It's the Cabinet
and the agency heads...
KOPPEL: What about the
experts that you consulted? I mean, you--you know...
Vice Pres. CHENEY: But we
didn't--I mean, there's--there was this allegation that somehow we did what the
Clintons did back in '93 on health. We did not.
KOPPEL: Exactly.
Vice Pres. CHENEY: We were
very sensitive to that and very careful of it. When you...
KOPPEL: Tell me where
the--tell me where the difference is?
Vice Pres. CHENEY: Well,
the--it's when you bring in...
KOPPEL: What was different
about what you did and what Hillary Clinton...
Vice Pres. CHENEY:
...outsiders and incorporate them in the policy-making process, that then
certain requirements with respect to federal advisory committees kicks in and
certain requirements have to be met. We didn't do that. We did this exactly the
same way, for example, that we put together the economic policy or tax policy.
And there's been this claim that it was done in secret, but it wasn't. It
wasn't anymore secret than anything else we do.
KOPPEL: The inference that
people have drawn--but, before I get to that, let me just ask you, what--what
is different about what Hillary Clinton did with the health program from what
you folks did with the energy policy?
Vice Pres. CHENEY: She
brought in outsiders, people who were not government employees, who were not
full-time...
KOPPEL: You didn't do
that?
Vice Pres. CHENEY: No.
KOPPEL: No outsiders?
Vice Pres. CHENEY: Well,
not as part of the deliberating pro--process.
KOPPEL: Well...
Vice Pres. CHENEY: No,
that's very important.
KOPPEL: ...are you
finessing that just a little bit too finely?
Vice Pres. CHENEY: No. No,
you're mis--misreading what the statute says. There's a big difference. We meet
all the time behind closed doors to make economic policy or to make education
policy. Now, you may deal with outside groups. They may have points of view
they want to represent. We heard from energy people. We heard from many
environment people. We heard from consumer groups. I met with congressman and
senators and governors. We heard from a broad variety of folks out there, but
they were not in the meetings where we put together the policy and made recommendations
to the president. That's the big difference.
KOPPEL: Isn't--isn't that
a fine point?
Vice Pres. CHENEY: That's
a very important point.
KOPPEL: In other words, if
we--if we have one meeting here...
Vice Pres. CHENEY: Mm-hmm.
KOPPEL: ...with a bunch of
people, and because of your background and the president's background in the
energy industry yourselves...
Vice Pres. CHENEY: Mm-hmm.
KOPPEL: ...the assumption
is that you did consult with a lot of your pals in the--in the energy industry.
If you consult with them in this room, and then you adjourn to the next room to
make policy, that--that...
Vice Pres. CHENEY: That's
not the way it works.
KOPPEL: That satisfies the
law?
Vice Pres. CHENEY: That
is--that is not the way it worked. In fact, we heard from a wide variety of
different groups. But we did not trigger the statute that specifically
provides for how you deal with advisory committees, for formally constituted
advisory committee that's making policy, like the Social Security Commission,
for example. There's a classic example of a group of outside people, not
full-time government employees, who are meeting to deliberate and to come up
with a policy recommendation. They meet in open session. The press is present.
You don't do that when you sit down, for example, with the--the secretary of
the treasury and the Council of Economic Advisers and director of OMB to make
major budget decisions, or make...
KOPPEL: But why not just
take the wind out of the sails of all your critics and say, 'Here's a list of
the people we consulted'?
See Transcript of ABC News: Nightline
dated July 25, 2001, at 2-4 attached as Exhibit 6 (emphasis added).
32. On January 30, 2002, the
General Accounting Office (“GAO”) issued a decision concerning the NEPDG in
which it specifically found that NEPDG had met with “selected non-governmental
parties” in its efforts to develop a proposed national energy policy. See Decision of the Comptroller General
Concerning NEPDG Litigation, January 30, 2002, attached as Exhibit 7.
33. The appearance of
favoritism and access shown to these energy executives stands in stark contrast
to the access the Bush-Cheney administration accorded to other groups who thus
far have received only a single mass meeting with lower level NEPDG staffers. See Exhibit 1.
34. Recent history has
unfortunately seen several ethical lapses concerning conflicts of interest in
The White House and violations of the FACA.
In Association of American Physicians and Surgeons v. Clinton,
997 F.2d 898 (D.C. Cir. 1993) (“AAPS”), the DC Circuit remanded the case
to the district court for discovery on the issue of whether the working group
of the President’s Task Force on National Health Care Reform constituted an
advisory committee under FACA, despite sworn claims by one of the heads of the
Task Force put forth by the Clinton-Gore Justice Department that it did not so
qualify. In ordering this discovery to
proceed, the DC circuit stated:
We simply
have insufficient material in the record to determine the character of the
working group and its members...[A]s we have indicated, because we differ with
the district court concerning the Task Force, we believe further proceedings,
including expedited discovery, are necessary before the district court can
confidently decide whether the working group is a FACA committee.
AAPS, 997 F. 2d at 915-916. When discovery proceeded in the district
court, plaintiffs uncovered facts which conclusively showed that the working
group of the Task Force did qualify as an advisory committee under the
FACA. The White House was sanctioned
for, in part, failing to comply with discovery requests concerning the
applicability of the FACA, and for misleading the court about who was and who
was not a member of former First Lady Hillary Rodham Clinton’s Health Care Task
Force:
The Department of Justice
has a long tradition of setting the highest standards of conduct for all
lawyers, and it is a sad day when this court must conclude, as did the United
States Attorney in his investigation, that the Department of Justice succumbed
to pressure from White House attorneys and others to provide this court with
"strained interpretations" that were "ultimately
unconvincing." This court goes further than the United States Attorney,
however, because this court cannot agree that the Department of Justice never
relied upon the "all-employee" exemption for the working group.
Having been presented the "all-employee" facts in the Magaziner
declaration, the Court of Appeals specifically found that defendants had made
that argument. Neither the briefs on appeal, nor any transcript of the oral
argument on appeal, was before this court. Yet the Department of Justice sat
back and never told this court that it was not making, and had not made, such an
argument, and never corrected any of the factual inaccuracies in the Magaziner
declaration. The United States Attorney reported that this was a conscious
decision because attorneys in the White House refused to allow any supplemental
information to be provided to the court. It seems that some government
officials never learn that the cover-up can be worse than the underlying
conduct. Most shocking to this court, and deeply disappointing, is that the
Department of Justice would participate in such conduct. This was not an issue
of good faith word games being played with the court. The United States
Attorney found that the most controversial sentence of the Magaziner
declaration -- "Only federal government employees serve as members of the
interdepartmental working group" -- could not be prosecuted under the
perjury statute because the issue of "membership" within the working
group was a fuzzy one, and no generally agreed upon "membership"
criteria were ever written down. Therefore, the Magaziner declaration was
actually false because of the implication of the declaration that
"membership" was a meaningful concept and that one could determine
who was and was not a "member" of the working group. This whole
dishonest explanation was provided to this court in the Magaziner declaration
on March 3, 1993, and this court holds that such dishonesty is sanctionable and
was not good faith dealing with the court or plaintiffs' counsel. It was not
timely corrected or supplemented, and this type of conduct is reprehensible,
and the government must be held accountable for it.
AAPS,
989 F. Supp. 8, 16-17
(D.D.C. 1997). In
light of this history, Plaintiff believes it is particularly in the public
interest for Bush-Cheney Administration officials and the NEPDG to avoid even an
appearance of a possible conflict of interest, by acknowledging the application
of FACA and the FOIA to all NEPDG meetings.
35. On June 25, 2001,
Plaintiff sent a letter to Vice President Cheney, pursuant to the provisions of
the FOIA and the FACA, 5 U.S.C. §§ 552 and App.2, requesting copies of all
minutes and final decision documents of NEPDG meetings from January 20, 2001 to
that date, as well as a complete listing, including addresses, of all persons
and entities that participated in NEPDG meetings, either directly or indirectly
through agents and/or intermediaries. See
June 25, 2001 Letter to The Hon. Richard B. Cheney, attached as Exhibit 8. Plaintiff also sought to attend all future
meetings of the NEPDG pursuant to the FACA, and asked to be provided with
future meeting schedules and contact information so that representatives of
Plaintiff could attend these meetings. Id. Plaintiff’s request was denied in its
entirety on July 5, 2001. See
July 5, 2001 Letter to Larry Klayman, attached as Exhibit 9.
36. GAO the investigative arm of Congress,
also requested that the NEPDG disclose the names of individuals who met with
the NEPDG, but has thus far been stonewalled in its efforts. See Joseph Kahn, “Cheney Withholds List of Those Who Spoke to Energy
Panel,” The New York Times, June 26, 2001 at A17; Express Wire Services,
“Cheney Won’t Give Up Names,” June 26, 2001; Scott Lindlaw, “Congress Demands
List of Participants in Cheney Energy Meetings,” AP, June 25, 2001,
attached collectively as Exhibit 10.
After several weeks of making requests, the GAO finally received some
documents regarding Defendant NEPDG’s finances, but incredibly, Defendant NEPDG
has, as of May 28, 2002, failed to provide a full accounting of the individuals
who met with Defendant NEPDG to the GAO, Plaintiff, or to the public.
37. Along with Plaintiff, the GAO, and
various members of the media, legal commentators have advocated a broad reading
of the FACA’s language which on its face does appear to cover a vast number of
communications between agencies and non-governmental parties. In a widely cited
article on the FACA, Michael H. Cardozo reasons:
In principle, any group of individuals,
however selected or constituted, that considers governmental matters and
furnishes views and conclusions to government officials or agencies, is a
governmental advisory committee. The FACA however, is concerned only with “public advisory committees,”
that is groups containing at least some members who are not government
employees. Thus a committee containing any number of officers of government is
not covered by the Act unless its membership includes outsiders,
representatives of the “private sector.”
Michael H. Cardozo, “The
Federal Advisory Committee Act In Operation (Administrative Law Review, Vol.
33, 3 (1981) (emphasis added). Mr.
Cardozo further reasons:
A key part of the definition of “advisory
committee” is the expression “established or utilized.” Superficially this
means that the origin of the group is not material in determining whether it is
an advisory committee covered by the act. It must be a “group,” however,
meaning more than one person, and someone must bring them together. That act,
whether done formally or informally, “establishes” the group. However the Act
does not expressly require the establishment to be performed by a government
official or agency. Under the strict language of the Act, even a group
formed by private industry becomes an advisory committee if it is “utilized” by
the president or by one or more agencies of the government.
Id. at 12-13. (Emphasis added.) Categorizing the types of advisory
committees, Mr. Cardozo writes: “A committee in any of the five functional
categories may be assigned an ‘operational’ as well as an ‘advisory’
responsibility. Id. at 32.
Examples of the types of advisory committees include those which provide: (1) policy
advice; (2) technical advice; and (3) fact finding. Id. at 33, 37,
39. (Emphasis added.)
38. On information and
belief, the NEPDG still is in existence.
In a January 3, 2002 letter to Rep. Henry Waxman, Counsel to the Vice
President David Addington conceded that an unidentified member of NEPDG’s staff
had met with Enron representatives on October 10, 2001 and discussed energy
policy matters. See January 3,
2002 letter from Counsel to the Vice President David Addington to Rep. Henry
Waxman, attached as Exhibit 11. On
information and belief, other meetings between both federal and non-federal
members of the allegedly defunct NEPDG have occurred and are still occurring to
this day to continue discussions on formulating a national energy policy. Id.
Consequently, despite the
alleged termination of Defendant NEPDG on September 30, 2001, Plaintiff’s FACA
and FOIA requests are not moot, and Plaintiff still has a right to the
documents it has requested pursuant to the FACA and FOIA.
39. At a February 12, 2002 hearing in this
matter, Defendants admitted that, despite the alleged termination of NEPDG,
documents generated by the NEPDG are still in the custody of Defendant Cheney
and that other NEPDG records “are within all of those eight agencies pertaining
to the work of their agency heads, their agency heads’ work on the committee.” See Transcript of February 12, 2002
Motions Hearing at 5-6. Indeed, the
Court ordered that these records be preserved.
Consequently, despite the alleged termination of Defendant NEPDG,
documents responsive to Plaintiff’s FACA and FOIA requests obviously still
exist. Plaintiff’s FOIA and FACA
requests are not moot, and Plaintiff still has a right to the documents it has
requested pursuant to the FOIA and FACA.
COUNT I
(Violation of the Federal Advisory Committee
Act)
40. Plaintiff incorporates by paragraphs 1-39
as if fully set forth herein.
41. The NEPDG is a federal advisory committee
as defined under the FACA, 5 U.S.C. App.2, and as such is required to comply
with all provisions of that law, including, but not limited to, filing a
charter, allowing interested persons--such as Plaintiff--to attend and have
input at meetings of the NEPDG, producing documents and other things and having
open meetings in accordance with the FOIA, 5 U.S.C. § 552, publishing notice of
all future meetings in the federal register, and having a board that is fairly
balanced in terms of the points of view represented.
42. Plaintiff has made a request to the NEPDG
that representatives of Plaintiff be allowed to attend and participate in
meetings of the NEPDG, that they be given copies of certain NEPDG documents,
and the NEPDG appoint at least one person with a different point of view, among
other matters. See Exhibit
8.
43. Defendant NEPDG denied Plaintiff’s
request by letter dated July 5, 2001. See
Exhibit 9.
44. The failure of Defendants to comply with
the FACA has harmed Plaintiff in that Plaintiff has as one of its primary
functions the monitoring and safeguarding of the public trust. The activities
of the Defendants in this case have deprived Plaintiff of its right, granted by
the FACA, to participate in meetings held by the NEPDG, to have advance notice
of those meetings, to obtain documents generated by the NEPDG, and to have a
voice in the affairs of the NEPDG. The acts of Defendants have thus frustrated
Plaintiff’s ability to effectively carry out its purpose of promoting and
protecting justice and social welfare, including, among other things,
preventing abuse and violation of the public trust by federal officers,
officials, employees, agents, and/or persons acting in concert with them.
45. As an interested party and a
representative of the public, Plaintiff has been and continues to be damaged by
the operations of the NEPDG. Public confidence in the integrity of the
Presidency and the executive branch as a whole has been and will be harmed by
the appearance that the Vice President and the Bush Administration as a whole
are under the influence of a select few members of major oil and other energy
producing corporations, many of whom contributed heavily to the Bush-Cheney
Administration in the 2000 Presidential election cycle. Members of Defendant
NEPDG also gain influence or favor with the executive branch to the detriment
of others who do not participate in the NEPDG.
46. Plaintiff will continue to suffer
permanent and irreparable injury unless operation of the NEPDG is brought into
compliance with the provisions of the FACA.
COUNT II
(Violation of the Freedom of Information Act)
47. Plaintiff incorporates paragraphs 1-46 as
if fully set forth herein.
48. Plaintiff filed with Defendant on June
25, 2001 via facsimile and on June 26, 2001 via certified mail, a
FOIA request (see Exhibit 8) in the form of a letter to Vice President
Richard B. Cheney, requesting access to certain records under FOIA. Access was requested to “copies of all
minutes and final decision documents of NEPDG meetings from January 20, 2001 to
the present, as well as a listing (including addresses) of all persons and entities
that participated in NEPDG meetings, either directly or indirectly through
agents and/or intermediaries,” among other items.
49. By letter dated July 5, 2001, Defendant
Cheney denied Plaintiff’s request. See
Exhibit 9.
50. Pursuant to 5 U.S.C. § 552(a)(6)(C) and 5
U.S.C. § 552(a)(6)(E)(ii)(I), Plaintiff shall be deemed to have exhausted its
administrative remedies with respect to its request to Defendant.
51. Pursuant to 5 U.S.C. § 552(a)(3),
Plaintiff has a right of access to the information and documents requested in its FOIA request, and
Defendants have no legal basis for refusing to disclose this information and
these documents to Plaintiff.
COUNT III
(Violation of the Federal Advisory Committee
Act/Mandamus)
52. Plaintiff incorporates paragraphs 1-51 as
if fully set forth herein.
53. The Cheney Energy Task Force and Task
Force Sub-Groups are advisory committees as defined under FACA.
54. The defendants have violated FACA as
follows:
a. By failing open each meeting of the Cheney
Energy Task Force and Task Force Sub-Groups to the public. (Violation of FACA
§10(a)(1)).
b. By failing to publish timely notice of
each meeting of the Cheney Energy Task Force and Task Force Sub-Groups in the
Federal Register. (Violation of FACA §10(a)(2)).
c. By failing to allow Plaintiff and other
interested persons to attend, appear before, or file statements with the Cheney
Energy Task Force and the Task Force Sub-Groups. (Violation of FACA §10(a)(3)).
d. By failing to make available for public
inspection and copying the records, reports, transcripts, minutes, appendices,
working papers, drafts, studies, agenda, or other documents which were made
available to or prepared for by the Cheney Energy Task Force and Task Force
Sub-Groups. (Violation of FACA §10(b)).
e. By failing to keep detailed minutes of
each meeting of the Cheney Energy Task Force and Task Force Sub-Groups,
certified as accurate, that contain a record of the persons present, a complete
and accurate description of matters discussed and conclusions reached and
copies of all reports received, issued, or approved by the Cheney Energy Task
Force and Task Force Sub-Groups. (Violation of FACA §10(c)).
f. By establishing the Task Force
Sub-Groups without specific authorization by statute or by the President and
without a determination published in the Federal Register, that establishing
the Task Force Sub-Groups is in the public interest. (Violation of FACA §9(a)).
g.
By allowing the Cheney Energy Task
Force and Task Force Sub-Groups to meet and take action without filing an
advisory committee charter containing the information required by FACA
(Violation of FACA §9(c)).
55. The Defendants have a nondiscretionary
duty to comply with the procedural requirements of FACA including but not
limited to those set forth in the preceding paragraph as items (a) through (g).
56. This Court has jurisdiction to compel the
Defendants to perform a nondiscretionary duty pursuant to the Mandamus and
Venue Act, 28 U.S.C. §1361.
COUNT IV
(Violation of the Federal Advisory Committee
Act/Administrative Procedure Act)
57. Plaintiff incorporates paragraphs 1-56 as
if fully set forth herein.
58. By violating the FACA as set forth in
paragraph 54, the agency Defendants have acted arbitrarily and capriciously and
not in accordance with law, and without observance of procedure required by
law, in violation of 5 U.S.C. §706(2)(A) and §706(2)(D).
PRAYER FOR RELIEF
WHEREFORE,
Plaintiff prayers for relief and judgment as follows:
1. That the Court enter a
judgment declaring Defendants to be in violation of the FACA and the APA;
2. That the Court enter a
writ of mandamus ordering Defendants to comply with the FACA, the FOIA, and the
APA;
3. That the Court grant
Plaintiff a fee waiver under the FOIA;
4. That the Court enter a
permanent injunction prohibiting Defendants from convening, conducting or
holding any meeting or engaging in any other activities that are not in full
compliance with the FACA, the FOIA, and the APA;
5. That the Court enter a
permanent injunction ordering Defendants to provide to Plaintiff, within ten
working days and at no cost to Plaintiff, a full and complete copy of all
records, reports, transcripts, minutes, appendixes, working papers, drafts,
studies, agenda, or other documents which were made available to or prepared
for Defendant NEPDG, irrespective of whether any such document otherwise is or
could be exempt from disclosure under the FOIA;
6. That the Court enter a
permanent injunction ordering Defendants to prepare and deliver to Plaintiff,
within ten working days, detailed minutes of each meeting of Defendant NEPDG,
certified as accurate, that contain a record of persons present, a complete and
accurate description of matters discussed and conclusions reached, and copies
of all report received, issued, or approved by Defendant NEPDG; and
7. That the Court award
Plaintiff attorneys fees and its costs of suit, as well as any and all other
relief the Court deems appropriate.
Respectfully submitted,
JUDICIAL WATCH, INC.
___________________________
Larry Klayman, Esq.
D.C. Bar No. 334581
Suite 725
501 School Street, S.W.
Washington, DC 20024
(202) 646-5172
Attorney for Plaintiff
Judicial Watch, Inc.