IN THE UNITED STATES DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC.,

Plaintiff,

v. Civil Action No. 01-1530 (EGS)

NATIONAL ENERGY POLICY

DEVELOPMENT GROUP, et al.,

Defendants.

____________________________________

PLAINTIFF’S OPPOSITION TO DEFENDANTS’

MOTION TO DISMISS

Plaintiff Judicial Watch, Inc. (“Judicial Watch”), by counsel, respectfully submits this Opposition to Defendants’s Motion to Dismiss.

MEMORANDUM OF LAW

I. Introduction.

This case concerns a simple request by the Judicial Watch to obtain access to documents and meetings of the National Energy Policy Development Group (“NEPDG”), which Judicial Watch alleges is an advisory committee within the meaning of the Federal Advisory Committee Act, 5 U.S.C. App. II §§ 1-10 (“FACA”). Judicial Watch also seeks access to the NEPDG’s documents pursuant to the Freedom of Information Act 5 U.S.C. §552 et seq. (“FOIA”).

Initially, NEPDG responded by moving to dismiss, alleging that Judicial Watch’s Complaint failed to properly plead the existence of a federal advisory committee. The NEPDG has now abandoned that argument after the Court expressed great skepticism about it at a February 12, 2002 hearing. At that hearing, the NEPDG’s counsel incredulously represented to the Court in a “Hail Mary” attempt to stave off defeat that, despite having filed a motion to dismiss, a reply to Judicial Watch’s opposition to its motion to dismiss and a supplemental memorandum, the Bush Justice Department had not thoroughly researched the issues (despite months and weeks to do so), and, consequently, it had not made its “best” arguments to the Court. In response, the Court graciously gave the NEPDG’s government counsel additional time to present its “best submission.” The Court also allowed Judicial Watch the opportunity to file an Amended Complaint, which it did.^[1]

Defendants’ pending motion thus constitutes the Bush Administration’s “best submission.” Like their prior submissions, Defendants’ submissions, unable to create law where none exist, fall far short of their intended mark. Several arguments are made in bad faith. For the compelling reasons set forth below, this case must proceed.

II. Factual Background.

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.” Id. at ¶ 24. President Bush directed the NEPDG to “gather information, deliberate, and . . . make recommendations to the President.” Id.

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. Id. at ¶ 25.

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. Id. at ¶ 26. Thomas Kuhn, a leading Bush fundraiser and president of the Edison Electric Institute, reportedly met with Vice President Cheney. Id. Kenneth Lay (“Lay”), the former CEO of the now bankrupt Enron and a friend of President Bush, had a dinner meeting with the president. Id., citing, Howard Fineman and Michael Isikoff, “Big Energy at the Table,” Newsweek, May 14, 2001.

In March 2001, Lay reportedly also met with Defendant Cheney to discuss energy policy. Id. at ¶ 27, citing, Howard Fineman and Michael Isikoff, “A New Capitol Clash,” Newsweek, February 11, 2002. 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.

In April 2001, Lay also reportedly met with Defendant Cheney to discuss the Bush Administration’s response to the California energy crisis. Id., at ¶ 28, citing, David Lazarus, “Memo Details Cheney-Enron Links,” San Francisco Chronicle, January 30, 2002. During this meeting, Lay reportedly handed Cheney a 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.

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. Id. at ¶ 29, citing, Michael Weisskopf and Adam Zagorin, “Getting the Ear of Dick Cheney,” Time, February 11, 2002. At that time, Barbour also was involved heavily in fundraising activities on behalf of President Bush. Id. Racicot currently is the Chairman of the Republican Party.

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. Id. at ¶ 30, citing, May 4, 2001 Letter from David S. Addington (emphasis added). All of the NEPDG so-called “stake-holder meetings” with non-governmental parties are covered by the FACA and the FOIA. Id.

Vice President Cheney has been evasive in describing the staffing and operations of the NEPDG. Id. at ¶ 31. 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'?

Id. at ¶ 31, citing, Transcript of ABC News: Nightline dated July 25, 2001, at 2-4 (emphasis added).

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. Id. at ¶ 32, citing, Decision of the Comptroller General Concerning NEPDG Litigation, January 30, 2002. 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. Id. at ¶ 33.

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.II, 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. Id. at ¶ 35, citing, June 25, 2001 Letter to The Hon. Richard B. Cheney. 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. Id., citing, July 5, 2001 Letter to Larry Klayman.

The Government Accounting Office (“GAO”), which serves as 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. Id. at ¶ 36, citing, Joseph Kahn, “Cheney Withholds List of Those Who Spoke to Energy Panel,” The New York Times, June 26, 2001 at A17; “Cheney Won’t Give Up Names,” Express Wire Services, June 26, 2001; Scott Lindlaw, “Congress Demands List of Participants in Cheney Energy Meetings,” Associated Press, June 25, 2001. After several weeks of making requests, the GAO finally received some documents regarding Defendant NEPDG’s finances. Id. Incredibly, as of February 15, 2002, the NEPDG has failed to provide a full accounting of the individuals who met with Defendant NEPDG to the GAO, Plaintiff, or to the public. Id.

On information and belief, the NEPDG still is in existence. Id. at ¶ 38. 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. Id., citing, January 3, 2002 letter from Counsel to the Vice President David Addington to Rep. Henry Waxman. 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 the 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.

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.” Id. at ¶ 39, citing, Transcript of February 12, 2002 Hearing at 5-6. Indeed, the Court ordered that these records be preserved. Id. 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. Id.

III. Discussion.

A. Judicial Watch’s Claims Are Not Moot.

Judicial Watch served its FACA demand on the NEPDG on June 25, 2001, only to have it denied in full on July 5, 2001. Am. Compl. ¶ 35, Exh. 8 and 9. Judicial Watch filed suit in this case eleven days later, on July 16, 2001.

There is no question that the NEDPG was in existence when Judicial Watch initiated this action. Defendants nevertheless contend that Judicial Watch’s FACA claim is moot, because the NEPDG, which was established by Presidential Memorandum on January 29, 2001, allegedly was terminated on September 30, 2001, eighty days after Judicial Watch had filed this lawsuit. Defendants Memorandum In Support Of Motion To Dismiss (“Defs. Mem.”) at 9.

Defendants’ mootness argument lacks merit for two separate and independent reasons. First, Defendants have advanced no controlling legal authority to support their argument that the alleged cessation of operations by the NEPDG after Judicial Watch served its request and after Judicial Watch filed this lawsuit somehow renders Judicial Watch’s claims moot. Second, Judicial Watch has alleged that the NEPDG has continued to existence on a de facto basis after September 30, 2001, and that it still is in existence today. Am. Compl. ¶38. Because this Court must accept the factual allegations in the Amended Complaint as true and construe all reasonable inferences therefrom in the light most favorable to Judicial Watch for purposes of this motion to dismiss, the only basis for Defendants’ mootness argument -- that the NEPDG ceased to exist on September 30, 2001 -- is unfounded. Moreover, it is inappropriate for this Court to decide factual disputes between the parties on a motion to dismiss. Therefore, Defendants’ mootness argument must be rejected.

At the oral argument in this case on February 12, 2001, this Court aptly confronted Defendants’ counsel with the total absence of any legal authority supporting Defendants’ mootness argument, as well as Defendants’ failure to acknowledge in their motion papers the existing legal precedent in the District of Columbia Circuit that undercuts their mootness argument. See Transcript of February 12, 2002 Hearing at 2-12. While Defendants have frivolously attempted to distinguish the controlling cases here, they still have failed to cite even a single case that supports their argument that the NEPDG’s alleged cessation of operations on September 30, 2001 rendered Judicial Watch’s claims in this action moot, notwithstanding that those claims were asserted prior to the date NEPDG allegedly ceased to exist and notwithstanding that Judicial Watch has alleged that the NEPDG continues to be in existence on a de facto basis.

Implicitly conceding that there is no authority on point to support their mootness argument, Defendants have merely sought unsuccessfully to distinguish a number of cases in which plaintiffs were permitted to assert FACA claims after the advisory committee ceased operations. For example, in Association of American Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993), the plaintiff Association of American Physicians and Surgeons, Inc. (“AAPS”) sought access to the meetings of the President’s Task Force on National Health Care Reform (“Task Force”). When these efforts were rebuffed, AAPS brought suit to enforce its rights under FACA. In accordance with its charter, the Task Force terminated its operations while the AAPS suit was pending. The U.S. Court of Appeals for the District of Columbia Circuit unambiguously stated that “[t]he Task Force’s ‘termination’ does not render this case moot . . . this case still presents a live controversy concerning the availability of Task Force and working group documents, which the appellees sought below pursuant to FACA.” 997 F.2d at 901 (emphasis added). This decision, which is controlling for purposes of the instant case, upholds the proposition that Judicial Watch’s claims are not moot, even if the NEPDG allegedly terminated as of September 30, 2001, eighty days after Judicial Watch brought this suit. Indeed, the governing law was so clear that the parties in the AAPS case stipulated that the plaintiff’s claims were not moot.

Other equally controlling decisions stand for the proposition that FACA claims are not moot, even when brought after the advisory committee has ceased operations. For example, in Cummock v. Gore, 180 F.3d 282 (D.C.Cir. 1999), the Court held that the plaintiff, who had been a member of the White House Commission on Aviation Safety and Security (“Commission”), had been denied access to certain documents and information relied upon by the Commission and that she needed to prepare an informed dissent to the Commission’s final report. Cummock filed her suit several months after the Commission had been disbanded and alleged that the Commission had violated 5 U.S.C. App. II § 10(b) when it refused to make certain information available to her, even when she specifically requested it in connection with her work on the Commission. The Court expressly rejected the government’s argument that, because the Commission no longer existed, Cummock could only seek the documents and information by means of a properly filed FOIA request. In so holding, Court unequivocally stated:

Because there is no question under our precedent that members of the public possess enforceable rights to obtain information under FACA, see Food Chem. News, 980 F.2d at 1472, it follows a fortiori that committee members have at least the same rights. And we have also made it clear that FACA rights are enforceable even after an advisory committee has been disbanded. See, e.g., Byrd, 1999 WL 252643, at *4 (rejecting argument that plaintiff’s injury was not redressable where panel had already completed its work and been disbanded).

Cummock, 180 F.3d at 292 (emphasis added). Thus, like the AAPS case, Cummock is controlling authority that a denial of FACA rights may be remedied even after the advisory committee has ceased operations.

Based on the foregoing District of Columbia Circuit precedent, it is clear that Judicial Watch’s claims are not moot here, even if the NEPDG ceased operations on September 30, 2001. An equally compelling reason to reject Defendants’ mootness argument is the well-established principle that, for purposes of Defendants’ motion to dismiss, this Court must accept the Complaint allegations as true and construe all reasonable inferences therefrom in the light most favorable to Judicial Watch. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Croixland Props. Ltd. Pshp. v. Corcoran, 174 F.3d 213, 215 (D.C.Cir. 1999). In paragraph 38 of the Amended Complaint, Judicial Watch has alleged that the NEPDG still is in existence today. 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. Am. Compl., Exh. 11. Judicial Watch also has alleged, on information and belief, that other meetings between both federal and non-federal members of the allegedly defunct NEPDG occurred and are occurring to this day to discuss and formulate energy policy. Am. Compl. ¶38, Exh. 11. The Addington letter supports a reasonable inference that the NEPDG is continuing to operate on a de facto basis. Accepting these factual allegations and reasonable inferences as true, as this Court must for purposes of defendants’ motion to dismiss, there is, and can be, no basis whatsoever for Defendants’ mootness argument and it was put forth in bad faith. Accordingly, Judicial Watch’s claims are not moot.

B. The APA Has No Applicability to This Action.

Defendants contend that FACA does not create a private cause of action. Defs. Mem. at 13. As a result, Defendants contend that any cause of action must arise under the Administrative Procedure Act (“APA”). Id. Defendants contend that the APA provides for judicial review only of “agency” action, and neither the Vice President nor the NEPDG is an “agency” for the purposes of the APA.

However, Defendants’ premise is incorrect, and thus, their conclusion is in error. Specifically, “the courts have recognized a private right of action under the Act [FACA].” Washington Legal Foundation v. American Bar Association Standing Committee on the Federal Judiciary, 648 F. Supp. 1353, 1361 (D.D.C. 1986) (emphasis added). Indeed, in the very cases cited by Defendants throughout their brief, the U.S. Court of Appeals for the District of Columbia Circuit entertained suits brought under FACA by aggrieved private citizens who sought access to advisory committee meetings and documents without resort to the APA. See AAPS, 997 F.2d at 898; Cummock, 180 F.3d at 282; Byrd v. U.S. Environmental Protection Agency, 174 F.3d 239 (D.C. Cir. 1999). Thus, Defendants contention has no merit, is again in bad faith, and should be rejected by the Court.

C. Additional Facts Must be Developed Regarding the NEPDG Before the Court Can Rule on the Applicability of the FOIA.

“Congress passed the Freedom of Information Act in 1966 to strengthen the disclosure requirements of the Administrative Procedure Act (“APA”). Each federal agency subject to the APA must now make its records, with certain specific exceptions, available to ‘any person’ who requests them; district courts have jurisdiction to order the production of any ‘identifiable record’ which is ‘improperly withheld,’ and ‘the burden is on the agency to sustain its action.’” Soucie v. David, 448 F.2d 1067, 1072-73 (D.C. Cir. 1971).

“As Amended in 1974, the Act defines ‘agency’ as ‘any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.’” Meyer v. Bush, 981 F.2d 1288, 1291 (D.C. Cir. 1993), quoting, 5 U.S.C. 552(e). Although the FOIA expressly includes the Executive Office of the President, “the Act [does] not cover ‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.’” Id., quoting, Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980). As a result, to determine whether a group established by the President is an “agency” within the Act, the Court must focus on three interrelated factors. Meyer, 981 F.2d at 1293. First, the Court “must ask how close operationally the group is to the President.” Id. Second, the Court must ask “what the nature of [the organizations] delegation from the President is.” Id. Lastly, the Court must ask “whether [the organization] has a self-contained structure.”

Defendants contend that neither the NEPDG nor the Vice President is an “agency” subject to the FOIA, and thus, the FOIA is not applicable here. However, Plaintiff respectfully submits it is premature for the Court to make a ruling on this issue absent further development of the facts through discovery. Specifically, there is insufficient evidence on the record to determine how close the NEPDG was operationally to the President, the nature of the delegation to the NEPDG and whether the NEPDG had a self-contained structure. Indeed, because Defendants cloaked their meetings in secrecy and refuse to disclose who was present and participated in the gathering of information, deliberations, and drafting of reports, this Court can not make an informed determination as to how close this group was operationally to the President, the nature of the delegation, or what type of structure existed.

Defendants contend that this case is indistinguishable from Meyer, 981 F.2d 1288, a case in which the Court determined that the group at issue was not an “agency” for FOIA purposes. However, the facts in Meyer were sufficiently developed to allow the Court to make this determination. Unlike this case, which is only at the initial, pre-discovery stage, the Meyer case was decided at the summary judgment stage of litigation. Clearly, additional facts must be developed regarding the NEPDG before the Court can rule on the applicability of the FOIA. Plaintiff must be allowed to develop these facts through discovery before the Court can even consider the issues raised by Defendants.

D. The FACA as Applied to the NEPDG is Not Unconstitutional.

1. As Defendants Conceded At Oral Argument On February 12, 2002, This Court Must Apply The Balancing Test Required By Morrison v. Olsen.

At oral argument in this case on February 12, 2002, counsel for Defendants properly conceded that this Court is required to apply a balancing test to determine whether FACA violates the constitutional separation of powers. See Transcript of February 12, 2002 Hearing at 33-34, 35 and 38. In making this admission, Defendants’ counsel also acknowledged that this Court was required to follow the existing legal precedent of Morrison v. Olson, 487 U.S. 654 (1988) and Association of American Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C.Cir. 1993) (“AAPS”), both of which require a balancing of interests to resolve whether FACA impermissibly burdens or undermines the powers of the Executive Branch in accomplishing its constitutionally assigned functions. Id. at 33-34, 35 and 38. Additionally, Defendants counsel further admitted that Defendants were not asking this Court to follow the concurring opinion of Justice Kennedy in Public Citizen. At the February 12, 2002 hearing, the following colloquy occurred:

THE COURT: I just wanted you to acknowledge the position you took in writing, because you did ask this Court to apply Justice Kennedy’s concurring opinion and you did ask this Court in writing to apply Judge Williams’, I believe, concurring opinion, and overlook the AAPS –

MS. WEISMANN: If that’s the conclusion that this Court drew from our papers, that’s not our intent.

Id., at p. 36.

However, Defendants have in bad faith reneged on their admissions to this Court and have resurrected their flawed argument that a “brightline” rule must be applied here based on Justice Kennedy’s concurring opinion in Public Citizen. In their present brief, they revert back to the untenable argument that FACA is unconstitutional based on Justice Kennedy’s concurring opinion in Public Citizen. In their brief, Defendants assert:

While the [Supreme] Court has, in other circumstances, considered the degree of intrusion into the Executive’s constitutionally protected interest in light of the Congress’ interest in adopting the particular legislation at issue in determining whether that legislation is valid, see Morrison, 487 U.S. at 695, that approach is unnecessary where, as here, the legislation impedes the President’s ability to carry out his express constitutional authority. Public Citizen, 491 U.S. at 484-86 (Kennedy, J., concurring).

Defs. Mem. at 24 (emphasis in original). Aside from the fundamental lack of merit of this argument, what is most troubling is that the Defendants, contrary to their misleading representations to this Court at the oral argument on February 12, 2002, are once again asking this Court to follow the concurring opinion of Justice Kennedy in Public Citizen and ignore the binding legal precedent of Morrison and AAPS that require application of a balancing of interest test. As Defendants argument that FACA is unconstitutional is not predicated on the controlling precedent of Morrison and AAPS, it must be rejected.

2. The Application of the Balancing Tests of Morrison and AAPS is Premature.

Alternatively, Defendants argue that FACA would likely be unconstitutional in the instant case, applying the balancing of interests test required by Morrison and AAPS. To reach this predetermined result, Defendants apply the balancing of interests test in a vacuum.

The Court in AAPS described this balancing test as follows:

If we were to go on to decide the constitutionality question, we would be obliged to ask whether, in Morrison v. Olson terms, this asserted application of FACA “impermissibly” burdens executive power. Morrison tells us to balance how much the interference with the President’s executive power prevents the President “from accomplishing his constitutionally assigned functions,” Morrison, 478 U.S. at 695, against the “overriding need to promote objectives within the constitutional authority of Congress.” Nixon v. Administrator of Gen. Servs., 433 U.S. [425, 443 (1977)].

AAPS, 997 F.2d at 910. Defendants’ counsel acknowledged the parameters of this balancing test at the oral argument on February 12, 2002, albeit in a far less detailed fashion that the Court did in AAPS:

MS. WEISMANN: So what they’re balancing, we submit, Your Honor, is on one hand, the President’s right under Article II to get confidential advice, and on the other hand, the goals Congress was trying to implement through FACA. That’s the balancing.

See Transcript of February 12, 2001 Hearing at 42.

Nonetheless, Defendants’ motion scarcely addresses Congress’ goals in enacting the FACA, much less the “overriding need to promote objectives within the constitutional authority of Congress.” AAPS, 997 F.2d at 910, quoting, Nixon, 433 U.S. at 443. In AAPS, the Court identified, at least in part, the goals Congress sought to achieve by enacting the FACA:

Congress passed FACA in 1972 to control the growth and operation of the “numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government.” As Congress put it, FACA’s purpose was: to eliminate unnecessary advisory committees; to limit the formation of new committees to the minimum number of necessary; to keep the function of the committees advisory in nature; to hold the committees to uniform standards and procedures; and to keep Congress and the public informed of their activities.

AAPS, 997 F.2d at 902-03 (citations omitted) (emphasis added). It is these important goals, along with the “overriding need to promote objectives within the constitutional authority of Congress,” that must be balanced against the alleged limitation on presidential power.

Moreover, the balancing test of Morrison and AAPS does not concern any alleged limitation on presidential power. As the Court held in AAPS, “Morrison tells us to balance how much the interference with the President’s executive power prevents the President ‘from accomplishing his constitutionally assigned functions.’” AAPS, 997 F.2d at 910 (emphasis added). Absent from Defendants’ argument is any meaningful discussion of how application of the FACA in this specific instance would “prevent” the president from accomplishing his constitutionally assigned functions.

Indeed, the FACA leaves the president with a full range of options for obtaining confidential advice, and thereby accomplishing his constitutional assigned functions, without implicating the statute. For instance, FACA does not prevent the president from obtaining confidential advice from his staff (or his spouse). FACA does not prevent the president from obtaining confidential advice from cabinet members or any federal employee or group of federal employees. It does not prevent the president from obtaining confidential advice from individual private citizens. It only limits a president’s ability to obtain confidential advice from committees, boards, commissions, etc., that are not “wholly composed” of full-time officers or employees of the federal government. 5 U.S.C. App. II § 3(2)(iii). Surely, this provides the president with a multitude of choices and alternatives for obtaining whatever confidential advice he deems necessary and does not “prevent” him in any way from accomplishing his constitutionally assigned functions.^[2] AAPS, 997 F.2d at 910.

In describing the balancing test set forth in Morrison, the Court in APPS focused on the “operational proximity” of a task force to the president, rather than the exact function of a task force at any given time, such as whether it is gathering information, giving advice, or making recommendations. AAPS, 997 F.2d at 910. Defendants allege, in this regard, that because “the NEPDG was led by the Vice President,” it “has the greatest ‘operational proximity’ to the President imaginable.” Defs. Mem. at 27. Precisely what role Vice President Cheney played with respect to the NEPDG and what specifically he did to “lead” the NEPDG is a question of fact that cannot be determined that this early stage. The mere fact that the Vice President led the NEPDG is hardly dispositive in any event. The fact that Vice President Gore led the federal advisory committee at issue in Cummock did not give rise to a constitutional prohibition in that litigation. The issue was not even raised. Cummock, 180 F.3d at 282. Similarly, the fact that Vice President George H.W. Bush chaired the task force at issue in Meyer, which arose under FOIA, not FACA, was only one of several factors that the Court analyzed in deciding whether the task force was sufficiently close operationally to the president to constitute the functional equivalent of an advisor to the president not subject to FOIA, or if it was a substantially independent agency subject to FOIA.

Nonetheless, publicly available documents attached to and incorporated by reference into Judicial Watch’s Amended Complaint demonstrate that much of the actual work performed by the NEPDG was undertaken by Department of Energy personnel and other personnel assigned to the NEPDG as staffers:

The Group is supported by five professionals employed by the Department of Energy and assigned for this purpose to the Office of the Vice President: an Executive Director, a Deputy Director, two Senior Professional Staff Members, and a Professional Staff Member. In addition, an individual appointed as a White House Fellow who is assigned to the Office of the Vice President provides support to the Group.

* * *

Please note that the Government officers who are on the National Energy Policy Development Group have assistants at their individual departments and agencies who help them with review and drafting of materials and may attend Group meetings with them. Those departments and agencies could advise on the personnel status of those assistants if it were material.

* * *

Individuals on the Group support staff have met with many individuals who are not Federal employees to gather information relevant to the Group’s work . . . These meetings by the Group’s staff were simply forums to collect individual views rather than to bring a collective judgment to bear. The Group’s staff held such meetings with a broad representation of people potentially affected by the Group’s work, including individuals involved with companies or industries (e.g., in the electricity, telecommunications, coal mining, petroleum, gas, refining, bioenergy, solar energy, nuclear energy, pipeline, railroad and automobile manufacturing sectors); environmental, wildlife, and marine advocacy; State and local utility regulation and energy management; research and teaching at universities; research and analysis as policy organizations (i.e., think tanks); energy consumers, including consumption by businesses and individuals; a major labor union; and about three dozen Members of Congress or their staffs.

* * *

To support the Group in the performance of its mission, one or more of the individuals on the Group’s support staff have met with many individuals who are not Federal employees to gather information relevant to the Group’s work. The non-Federal employees from whom the Group’s support staff has thus far sought information constitute a broad range of sources of information . . ..

Am. Compl., Exhibit 5 at Responses (1)(a), (1)(b), (2) and (4); see also id at Exhibit 11. Any adjudication of the “operational proximity” of the NEPDG to the president obviously must include not only an analysis of the role played by the Vice President, who may have acted as little more than a figurehead, but also an analysis of the role played by Department of Energy staffers assigned to the NEPDG and other personnel at various agencies who assisted the NEPDG’s members.

In this regard, many of the authorities on which Defendants rely in addressing the purported “operational proximity” of the task force to the president arose from Watergate era efforts to force President Nixon to turn over to Congress, grand juries and/or other investigative bodies tape recordings made by the president. This is true of United States v. Nixon, 418 U.S. 683 (1974), Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1994) and Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973). Defs. Mem. at 27-30. Obviously, there can be no greater “operational proximity” to the president that the president himself. It simply is not a fair comparison, when addressing “operational proximity” to the president, to consider prior cases involving the president’s own allegedly confidential communications, namely, for example, recordations of the president’s voice in otherwise private oval office conversations.

Clearly, it is premature for the Court to make a ruling on Defendants’ argument that the FACA is unconstitutional as applied to NEPDG because of the task force’s “operational proximity” to the president because these are facts that have not yet been developed in discovery. When confronted with a similar situation in AAPS, the Court allowed the plaintiffs in that case to undertake discovery into the membership “working group” at issue in that FACA litigation. The AAPS Court stated:

We must construe FACA in light of its purpose to regulate the growth and operation of advisory committees . . . Whether the special government employees are full-time, however, is, in part, a factual issue that was not developed below due to the lack of discovery . . ..

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 915-16. Plaintiff respectfully submits that similar factual issues regarding the NEPDG must be resolved before the Court can rule on the applicability of FACA to the NEPDG. This factual development can only be resolved through the discovery process.

Defendants’ constitutional avoidance argument is fundamentally flawed for at least two reasons. First, Judicial Watch has alleged facts in the Amended Complaint that support the conclusion that NEPDG is a committee within the meaning of FACA. FACA defines an “advisory committee” as “any committee, board, commission, council, conference, panel, task force, or other similar group” that is “established by statute or reorganization plan” or “established or utilized by” the President or one or more agencies “in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.” 5 U.S.C. App. II § 3(2). FACA expressly excludes from the definition of an advisory committee “any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.” Id. In its Amended Complaint, Judicial Watch has alleged that the NEPDG is an entity or agency of the U.S. Government created by President George W. Bush to “gather information, deliberate, and . . . make recommendations to the President.” Am. Compl. ¶¶4, 24. Judicial Watch also has alleged, on information and belief, that 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, therefore, were de facto members of the NEPDG. Id., ¶25. For purposes of this motion to dismiss, this Court must accept these factual allegations as true and must construe all reasonable inferences therefrom in the light most favorable to Judicial Watch. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Croixland Props. Ltd. Pshp. v. Corcoran, 174 F.3d 213, 215 (D.C.Cir. 1999). Therefore, for purposes of Defendants’ motion to dismiss, the NEPDG must be treated as an advisory committee subject to FACA.

Second, whether NEPDG is an agency under the APA is irrelevant for purposes of this motion and lawsuit for all the reasons previously discussed herein at page 13, supra.

Accordingly, Defendants’ constitutional avoidance argument has no merit and must be rejected.

IV. Conclusion.

This lawsuit is now over eight months old and Defendants latest “Hail Mary” attempts to delay and avoid discovery -- in furtherance of their apparent desire to hide the composition and work of the NEPDG from the public -- cannot be permitted to continue any longer. Particularly in light of the historic Enron scandal, of which the NEPDG is a part, this is a matter of urgent public interest. For all the forgoing reasons, Plaintiff respectfully requests that Defendants’ motion to dismiss be denied, and that Plaintiff be allowed to proceed with discovery.

Respectfully submitted,

_________________________

Larry Klayman, Esq.

DC Bar No. 334581

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 725

Washington, DC 20024

(202) 646-5172

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., )

)

Plaintiff, )

)

v. ) Civil Action No. 01-1530 (EGS)

)

NATIONAL ENERGY POLICY )

DEVELOPMENT GROUP, et al., )

)

Defendants. )

____________________________________)

[PROPOSED] ORDER

Upon consideration of Plaintiff’s Opposition to Defendants’ Motion to Dismiss and the entire

record herein, it is hereby

ORDERED that:

1. Defendant’s motion is denied.

Dated: ________________________________

The Hon. Emmet G. Sullivan, U.S.D.J.

Copies to:

Larry Klayman, Esq.

JUDICIAL WATCH, INC.

501 School Street, SW

Suite 725

Washington, DC 20024

Anne L. Weismann, Esq.

David O. Buchholz, Esq.

U.S. Department of Justice

Civil Division, Federal Programs Branch

Room 952

901 E Street, N.W.

Washington, DC 20530

CERTIFICATE OF SERVICE

I hereby certify that on March 22, 2002 a true and correct copy of the foregoing PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS was served first class, U.S. mail, postage prepaid, on the following:

Anne L. Weismann, Esq.

David O. Buchholz, Esq.

U.S. Department of Justice

Civil Division, Federal Programs Branch

Room 952

901 E Street, N.W.

Washington, DC 20530

_________________________

Paul J. Orfanedes

^[1] Judicial Watch’s Amended Complaint names as additional defendants the numerous known members of the NEGPD.

^[2] This is not a situation in which Congress forced a statutory limitation on the president over the president’s veto. If FACA imposed the type of fatal limitation on presidential power that Defendants suggest, then it is doubtful any president would have signed the FACA into law.