IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.
501 School Street, SW, Suite 725
Washington, DC 20024
Plaintiff,
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.
__________________________________________
AMENDED COMPLAINT
Plaintiff, Judicial Watch, Inc., hereby files
this amended complaint for compliance with the Federal Advisory Committee Act,
5 U.S.C. App. 2 (“FACA”), and the Freedom of Information Act, 5 U.S.C. § 552 et
seq. (“FOIA”). As grounds
therefore, Plaintiff respectfully alleges as follows:
JURISDICTION AND VENUE
1. This court has jurisdiction over
this action pursuant to 28 U.S.C. § 1346(a)(2) (United States as defendant),
and 5 U.S.C. § 552(a)(4)(B) (FOIA).
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 Defendant National
Energy Policy Development Group.
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 February 15, 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 appears 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.
WHEREFORE,
Plaintiff prays: (1) that Defendant NEPDG be found in violation of the FACA and
that Defendants be enjoined, pursuant to Rule 65 of the Federal Rules of Civil
Procedure, from holding meetings while it continues to be in violation of the
FACA; (2) that, pursuant to 28 U.S.C. §1361 and other applicable laws, a writ
of mandamus issue compelling Defendant NEPDG to comply with the FACA; (3) that
Defendants be ordered to disclose and provide to Plaintiff the information and
documents requested by Plaintiff’s FOIA request; and (4) that Plaintiff be
awarded the attorneys fees and costs of bringing this suit, as well as any and
all other relief the Court deems proper.
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.
WHEREFORE,
Plaintiff prays that this Court: (1) declare that Defendants’ refusal to
disclose the information and documents requested by Plaintiff is unlawful; (2)
order Defendants to make the requested information and documents available to
Plaintiff; (3) grant Plaintiff’s request for a fee waiver; (4) award Plaintiff
its costs and reasonable attorneys’ fees in this action; and (5) grant such
other and further relief as the Court may deem just and proper.
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
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on
February 15, 2002 a true and correct copy of the foregoing AMENDED COMPLAINT
was served by facsimile and first class mail, postage prepaid, on the following:
Anne L. Weismann, Esq.
David Buchholz, Esq.
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
_________________________
Jason Aldrich