No. 03-475
In
The Supreme Court of the United States
____________
RICHARD
B. CHENEY, VICE PRESIDENT
OF THE UNITED STATES, ET AL.,
Petitioners
v.
UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________
ON
WRIT OF CERTIORARI
TO
THE UNITED STATES COURT OF APPEALS
FOR
THE DISTRICT OF COLUMBIA CIRCUIT
____________
BRIEF IN
OPPOSITION OF
RESPONDENT
JUDICIAL WATCH, INC.
____________
Paul J.
Orfanedes*
James F.
Peterson
Michael
J. Hurley
JUDICIAL
WATCH, INC.
501
School Street, S.W., Suite 500
Washington,
DC 20024
(202)
646-5172
Counsel
for Respondent Judicial Watch, Inc.
*
Denotes Counsel of Record
QUESTIONS PRESENTED
1. Whether the court of appeals correctly denied Petitioners request for mandamus relief and attempted interlocutory appeal concerning a non-appealable, non-final discovery ruling.
2. Whether this Court should adopt a construction of the Federal Advisory Committee Act that is at odds with the plain language of the statute and overturn the lower courts efforts to postpone, if not avoid, addressing the constitutionality of the statute by authorizing narrow, carefully focused discovery.
3. Whether this Court should declare the Federal Advisory Committee Act unconstitutional as applied to the National Energy Policy Development Group.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED.................................................. i
TABLE OF AUTHORITIES................................................ iv
STATEMENT...................................................................... 1
A. The National Energy Policy Development
Group....................................................................... 2
B. The Litigation Below.................................................. 3
SUMMARY OF ARGUMENT.......................................... 10
ARGUMENT .................................................................... 12
I. Following Long-Standing Doctrine, The Lower
Courts Properly Authorized Narrow, Carefully
Focused Discovery........................................................ 12
A. The Lower Courts Properly Sought To
Postpone, If Not Avoid, Consideration
Of Any Constitutional Issues By Auth-
orizing Very Limited Discovery................................ 13
B. The Court of Appeals Properly Rejected
Petitioners Request For Mandamus
Relief And Dismissed The Vice
Presidents Appeal.................................................. 21
Page
C. Petitioners Ancillary Arguments
Regarding The Lower Courts
Rulings Lack Merit.................................................. 26
II. The Lower Courts Application Of FACA Was
Consistent With The Plain Language Of The
Statute........................................................................... 29
III. FACA Does Not Violate The Constitution As
Applied To The NEPDG.............................................. 39
CONCLUSION................................................................. 50
TABLE OF AUTHORITIES
Cases: Page
Alexander v. FBI, 194 F.R.D. 299 (D.D.C. 2000)............. 20
Allied Chemical Corp. v. Daiflon, Inc.,
449 U.S. 33 (1980)................................................. 21, 22
American Foreign Serv. Assn v. Garfinkle,
490 U.S. 153 (1989)............................................... 14, 15
Ashwander v. Tennessee Valley Auth.,
297 U.S. 288 (1936)..................................................... 39
Association of Am. Physicians
& Surgeons, Inc.
v. Clinton, 997 F.2d 898 (D.C. Cir. 1993)............ passim
Barenblatt v. United States, 360 U.S. 109 (1959)............. 45
Bowen v. Michigan Academy of Family Physicians,
476 U.S. 667 (1986)..................................................... 28
Buckley v. Valeo, 424 U.S. 1 (1976).................................. 19
Chamber of Commerce v. Reich, 74 F.3d 1322
(D.C. Cir. 1996)........................................................... 28
Church of Scientology v. United States,
506 U.S. 9 (1992)......................................................... 25
Citizens to Preserve Overton
Park, Inc. v.
Volpe, 401 U.S. 402 (1971)......................................... 29
Page
Clinton v. Jones, 520 U.S. 681 (1997)................... 19, 20, 27
Columbia Broadcasting Sys.,
Inc. v. Democratic
Natl Comm., 412 U.S. 91 (1973)................................ 40
Commercial Drapery Contractors,
Inc. v.
United States, 133 F.3d 1 (D.C. Cir. 1998)................. 29
Conley v. Gibson, 355 U.S. 41 (1957)............................... 14
Crawford-El v. Britton, 523 U.S. 574 (1998).................... 14
Estate of Cowart v. Nicklos Drilling Co.,
505 U.S. 469 (1992)..................................................... 31
Franklin v. Massachusetts, 505 U.S. 788 (1992).............. 27
Fullilove v. Klutznick, 448 U.S. 472 (1980)................ 39, 40
Harlow v. Fitzgerald, 457 U.S. 800 (1982)....................... 19
Hartford Underwriters Ins. Co.
v. Union Planters
Bank, N.A., 530 U.S. 1 (2000)..................................... 31
Hickman v. Taylor, 329 U.S. 495 (1947)........................... 29
INS v. Chadha, 462 U.S. 919 (1983)................................. 45
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)....... 20, 21
Page
Kerr v. United States Dist. Court,
426 U.S. 394 (1976)............................................... 21, 22
Leatherman v. Tarrant County, 507 U.S. 163 (1993)....... 14
Leedom v. Kyne, 358 U.S. 184 (1958)............................... 28
Minneapolis Star & Tribune
Co. v. Minnesota
Commnr of Revenue,
460 U.S. 575 (1983) .................................................... 48
Mistretta v. United States, 488 U.S. 361 (1989)............... 19
Morrison v. Olson, 487 U.S. 654 (1988)..................... passim
Nader v. Baroody, 396 F. Supp. 1231 (D.D.C. 1975)........ 47
National Assn
of Criminal Def. Lawyers, Inc.
v. U.S. Dept of Justice, 182 F.3d 981
(D.C. Cir. 1999)........................................................... 23
Natural Resources Def. Council v. Curtis,
189 F.R.D. 4 (D.D.C. 1999)......................................... 20
Nixon v. Administrator of General Services,
433 U.S. 425 (1977).............................................. passim
Public Citizen v. Department of Justice,
491 U.S. 440 (1989).............................................. passim
Rostker v. Goldberg, 453 U.S. 47 (1981).......................... 39
Page
Spector Motor Service v. McLaughlin,
323 U.S. 101 (1944)............................................... 14, 15
United States v. Armstrong, 534 U.S. 456 (1996)............. 27
United States v. Klein, 80 U.S. (13 Wall.) 128
(1872)........................................................................... 45
United States v. National Dairy Products Corp.,
372 U.S. 29 (1963)....................................................... 40
United States v. Nixon, 418 U.S. 683 (1974)............. passim
United States v. Poindexter, 727 F. Supp. 1501
(D.D.C. 1989).................................................. 23, 24, 25
Will v. United States, 389 U.S. 90 (1967).......................... 21
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).............................................. passim
Constitution, Statutes and Rules:
U.S. Const. art. I, § 1.......................................................... 46
U.S. Const. art. II, § 2......................................................... 40
U.S. Const. art. II, § 3......................................................... 40
Page
Federal Advisory Committee Act,
5 U.S.C. App. 1, et seq.................................................. 2
5 U.S.C. App. 2............................................................ 36
5 U.S.C. App. 2(10)(b)................................................. 17
5 U.S.C. App. 2(b)(5)..................................................... 2
5 U.S.C. App. 3(2)....................................... 3, 31, 32, 33
5 U.S.C. App. 3(2)(B)............................................ 30, 36
5 U.S.C. App. 3(2)(C).................................................. 46
5 U.S.C. App. 9(a)........................................... 33, 34, 35
5 U.S.C. App. 9(c)....................................................... 35
5 U.S.C. App. 10(a)(1)................................................. 48
Freedom of Information Act
5 U.S.C. § 552......................................................... 2, 44
The Privacy Act, 5 U.S.C. § 552a....................................... 44
Government in the Sunshine Act,
5 U.S.C. § 552b........................................................... 44
Administrative Procedure Act,
5 U.S.C. § 701, et seq.................................................... 5
Page
13 U.S.C. §§ 8-9................................................................ 44
26 U.S.C. § 6103............................................................... 44
28 U.S.C. § 1291............................................................... 25
28 U.S.C. § 1292(b)............................................................. 7
Federal Records Act,
44 U.S.C. § 2101, et seq.............................................. 44
Fed.R.Civ.P. 8(a)............................................................ 14
Fed.R.Civ.P. 37............................................................... 26
Miscellaneous:
37 Weekly Comp. Pres. Doc. 988................................... 2
Charles
W. Johnson, Parliamentarian of the U.S.
House of Representatives, How Our Laws Are
Made, § 7
(2003), at http://thomas.loc.gov............. 46
Ron Suskind,
The Price of Loyalty (2004)..................... 4
NEPDG, National
Energy Policy: Reliable, Affordable,
and Environmentally Sound Energy for Americas
Future (2001)............................................................... 2
STATEMENT
This case comes before the Court on the denial of a motion
for a protective order seeking to preclude all discovery. Rather than assert any objections or
privileges in response to Respondents
discovery requests, Petitioners instead seek to immunize themselves from any
discovery in this case by arguing that the district courts denial of their discovery motion provides a basis to
challenge to the constitutionality of the Federal Advisory Committee Act (FACA). Following the long-standing precedent of this
Court, the district court assiduously sought to postpone, if not avoid,
consideration of any constitutional issue by authorizing very tightly-reined
discovery. The court of appeals, which
properly rejected Petitioners request
for mandamus relief and dismissed Petitioners
attempted interlocutory appeal of the district courts discovery order, carefully narrowed discovery even further
to avoid reaching any constitutional issue.
Nonetheless, Petitioners ask this Court to reject the lower courts authorization of limited discovery as a means of
constitutional avoidance and instead adopt a construction of FACA that is at
odds with the plain language of the statute.
In the alternative, they ask the Court to declare FACA unconstitutional
based on a legal analysis that a majority of this Court has never adopted. The Court should decline Petitioners invitation to prematurely and unnecessarily decide the
constitutionality of FACA at this time solely on the lowers courts well-considered, non-appealable
discovery rulings. The ruling of the
court of appeals should be affirmed, and this case should be remanded to the
district court for discovery.
A. The National Energy
Policy Development Group.
By memorandum dated
January 29, 2001, President Bush established the National Energy Policy
Development Group (NEPDG) 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 production and
distribution of energy. J.A. 157.
The President directed Vice President Richard B. Cheney to lead the
group. J.A. 157. Various cabinet and other high-level
Executive Branch officials were named as members. Id. Andrew Lundquist was made
Executive Director. J.A. 143.
After several months of deliberations, on May 16, 2001, the
NEPDG submitted a report and recommendations to the President. NEPDG, National Energy Policy: Reliable,
Affordable, and Environmentally Sound Energy for Americas Future at ii
(2001). The NEPDG published its report
and recommendations, with the approval of the President, on or about that same date. On June 28, 2001, President Bush transmitted
the NEPDGs
report and recommendations to Congress.
37 Weekly Comp. Pres. Doc. 988.
On June 25, 2001, Respondent Judicial Watch, Inc. (Judicial Watch) sent a
letter to Vice President Cheney, pursuant to the Freedom of Information Act (FOIA) and
FACA,[1]
5 U.S.C. § 552 and App. 1, et seq.,
requesting copies of all minutes and final decision documents of NEPDG
meetings, as well as a complete listing of all persons and entities that
participated in NEPDG meetings. J.A. 30-31. Judicial Watch also asked to attend any
future meetings of the NEPDG and requested contact information and a schedule
for such meetings. J.A. 31. On July 5, 2001, Judicial Watchs request was denied. Id.
B. The Litigation
Below.
On July 16, 2001, Judicial Watch filed suit in the U.S.
District Court for the District of Columbia under both FOIA and FACA, among
other applicable statutes. J.A. 1,
16-138. In its pleadings, Judicial Watch
alleged, on information and belief, that private executives and lobbyists
representing the energy industry regularly
attended and fully participated in
non-public meetings of the NEPDG as if
they were members of the advisory committee.[2] J.A. 21.
Judicial Watchs
Complaint was based in large part on the decision of the U.S. Court of Appeals
for the District of Columbia in Association of American Physicians &
Surgeons, Inc. v. Clinton, 997 F.2d 898, 915 (D.C. Cir. 1993), which had
held that persons may be considered members of an advisory committee if their involvement and role are functionally indistinguishable from
those of other members. In support of its allegations, Judicial Watch
cited media reports of meetings between the Vice President, the NEPDGs Executive Director, Andrew
Lundquist, and energy industry executives and lobbyists. J.A. 21-23.
Judicial Watch also cited a letter from the Vice Presidents counsel, David S. Addington, to
members of Congress admitting that NEPDG staff members met with many individuals who were not federal employees and a General Accounting Office report specifically finding
that the NEPDG had met with selected non-governmental
parties in its efforts to develop a proposed
national energy policy.[3]
J.A. 23, 27.
Having been denied access to the information it requested,
Judicial Watchs Complaint sought, inter alia,
a judgment declaring Defendants to be in violation of FACA, a writ of mandamus
ordering Defendants to comply with FACA, and an injunction requiring release of
detailed minutes of each meeting of Defendant NEPDG . . .
that contain a record of persons present, a complete and accurate description
of matters discussed and conclusions reached, and copies of all reports received,
issued, or approved by Defendant NEPDG. J.A. 39.
On January 25, 2002, Respondent Sierra Club filed a similar lawsuit in
the U.S. District Court for the Northern District of California. The Sierra Clubs lawsuit
subsequently was transferred to the U.S. District Court for the District of
Columbia and consolidated with Judicial Watchs
lawsuit.
Petitioners moved to dismiss Respondents claims, arguing that application
of FACA to the NEPDGs
operations would directly interfere with the Presidents express constitutional authority and that such an
expansive reading of FACA would encroach upon the Presidents constitutionally protected interest in receiving
confidential advice from his chosen advisers, an interest that is also rooted
in the principle of separation of powers. Pet. App. 4a-5a.
On July 11, 2002, the district court granted in part and
denied in part Petitioners motion
to dismiss. Pet. App. 53a-123a. It granted the motion with respect to claims
Respondents had asserted against the NEPDG and the Vice President under the
Administrative Procedure Act (APA), 5 U.S.C. § 701, et
seq., finding that neither the NEPDG nor the Vice President were agencies within the meaning of the APA. Pet. App. 77a-79a; 122a-23a. It denied the motion with respect to
Respondents mandamus claim, finding that FACA leaves no room for discretion with
respect to an advisory committees
obligation to make its records available for public inspection. Pet. App. 94a-95a. The district court also appropriately
deferred any ruling on Petitioners
separation of powers argument, explaining that, after
discovery, the government may prevail on summary judgment on statutory grounds
without the need for this Court to address the constitutionality of applying
FACA [to the Vice President]. Id. at 119a. The district court was fully cognizant that, while discovery in this case may raise some constitutional
issues, those issues of executive privilege will be much more limited in scope
than the broad constitutional challenge raised by the government here. Id. The district court also ordered Respondents to
submit a joint, proposed discovery plan.
Id. at 123a.
On August 2, 2002, the district court approved a discovery
plan submitted by Respondents and ordered Petitioners to file detailed and precise objections to particular requests or identify
and explain their invocations of privilege with particularity. Pet. App. 5a. That same day, Respondents served a single
set of interrogatories and a single set of document requests, consisting of
nine interrogatories and eight document requests each, on Petitioners. J.A. 215-30.
Importantly, Respondents
discovery requests were not directed to the President. Id.
Nor were they directed to the Vice President individually. Id.
Rather, Respondents
discovery requests were directed to Petitioners as a whole, including all
members of the NEPDG and Executive Director Lundquist. Id.
In response, Petitioners declined to serve particularized
objections or assert any claims of privilege.
Instead, they filed a motion for a protective order and a motion for
reconsideration of the district courts August
2, 2002 order approving Respondents
discovery plan. They also submitted an
affidavit by a member of the Vice Presidents staff,
Ms. Karen Knutson, and urged the district court to consider, but did not file, a motion
for summary judgment. See Pet.
Br. 6; J.A. 235-41. Ms. Knutsons affidavit asserted that, [t]o the
best of my knowledge . . . no one other than [federal officers and employees]
attended any of the [NEPDG] meetings. J.A. 240.
Ms. Knutson also claimed to have been present at most of the meetings of
the NEPDG, but not at meetings of
subgroups of the NEPDG. J.A.
238-39.
On October 17, 2002, the district court denied Petitioners motion for a protective order and for reconsideration. The district court also directed Petitioners
to produce non-privileged documents and a privilege log by November 5, 2002.
Pet. App. 6a. At a hearing that
same day, the district court offered to review allegedly privileged materials in
camera or appoint a special master to review any privilege claims. J.A. 247.
Instead of responding to the discovery requests and filing a
privilege log (or even taking up the district court on its offer to review
allegedly privileged information in camera or appoint a special master),
on October 21, 2002, Petitioners requested a stay pending appeal, and, on
October 23, 2002, filed a motion in the district court seeking certification of
an interlocutory appeal under 28 U.S.C. §
1292(b). J.A. 368-82. The specific orders Petitioners sought to
have certified for interlocutory appeal were as follows: (1) the district courts October 17, 2002 order denying Petitioners motion for a protective order and for reconsideration of
the district courts August 2, 2002 order approving
Respondents discovery plan; (2) the district
courts September 9, 2002 order setting a
briefing schedule on discovery motions; and (3) the district courts July 11, 2002 ruling denying Petitioners motion to dismiss.
J.A. 279-81.
On November 7, 2002, while Petitioners motion for certification of an interlocutory appeal was
pending,[4]
Vice President Cheney filed a notice of appeal from the following non-appealable, non-final orders entered by the district court:
(1) the September 9, 2002 order setting
a briefing schedule; (2) the October 17, 2002 order denying Petitioners motion for a protective order and for reconsideration; and
(3) a November 1, 2002 order entered by the district court denying Petitioners motion for a stay pending appeal. J.A. 337-38.
On or about November 12, 2002, Petitioners filed an emergency motion for a writ of mandamus in the court of appeals challenging the district courts discovery orders. In their petition, Petitioners requested an order vacat[ing] the discovery orders issued by the district court, direct[ing] the court to decide the case on the basis of the administrative record and such supplement