FOR THE DISTRICT OF COLUMBIA
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JUDICIAL WATCH,
INC., et al., Plaintiffs, v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP, et al., Defendants. --------------------------------------------- SIERRA CLUB, Plaintiff, v. VICE PRESIDENT RICHARD B. CHENEY, et al., Defendants. |
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Civil Action
No.: 01-1530 (EGS) |
The parties agree that following this Court’s July 11, 2002 memorandum opinion (“Mem. Op.”), the next step in this litigation is to determine who were the members (and, in particular, whether there were de facto private party members) of (a) the Cheney Energy Task Force and (b) each of the alleged sub-groups established or utilized by the Task Force or other defendants. However, agreement ends there. This Court believes it is its job to make these determinations, and fashion a discovery plan designed to elicit the information which was enumerated in the order of July 11, 2002. Defendants arrogantly insist it is their job and not the Court’s. Ultimately, defendants’ proposal boils down to nothing more than “trust us,” a standard that is not only legally inappropriate, but is something that this Court has already found that it cannot do.
The Defendants also arrogantly flout this Court's order directing them to file objections to the Plaintiffs' proposed discovery plan, stating instead that "because plaintiffs' proposed discovery has not been approved by the Court, defendants are not submitting specific objections to plaintiffs' proposed requests)." Def. Objections, p. 2 n.1 (emphasis added). Instead, they submit a brief in effect rearguing whether any discovery should be allowed at all, an issue that the court has already resolved: “The proof of any violation of the statutes at issue here, FACA, the APA, and the federal mandamus statute, is contingent upon the development of a factual record.” Mem. Op. p. 54.
Defendants argue that plaintiffs’ claims arise under the APA, and thus there is no discovery, only review of the “administrative record.” Def. Objections, p. 2. According to defendants, the “administrative record” for purposes of determining the membership of the Task Force consists of the President’s memo establishing the Task Force, a letter from the Office of the Vice President, and the Task Force’s Final Report. Id. p. 6. To this putative "record," the defendants will add a declaration providing a “fuller statement of facts” to support their contention that FACA does not apply to the Task Force (ibid.) and “similar” declarations as to the alleged subgroups. Id. pp. 6-7. Finally, defendants will simultaneously file a motion for summary judgment, to which they are entitled on the basis of these “administrative records.” Id. p. 6.
There are two fundamental flaws with this approach. The first is that it will not provide the court with the information necessary to decide whether or not FACA applies to the Task Force or any of the sub-groups. In Association of American Physicians and Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (“AAPS”), the D.C. Circuit described at length the sorts of factual information that is necessary to make this determination. For example, the AAPS court confronted the question as to whether 40 “special government employees” who were members of the Task Force’s Working Group were “full-time government employees”. Id. at 914-915. The Court could not decide this issue, because “whether the special government employees at issue are full-time, however, is, in part, a factual issue that was not developed below due to the lack of discovery.” Id. at 915.
A second factual issue in AAPS arose because the lower court had dismissed FACA claims against the Working Group, relying on an affidavit from one of the president’s advisors. AAPS at 911. The Court of Appeals noted that once the lower court had considered this evidence, “ the district judge was obliged to permit reasonable discovery as to the facts set forth in the affidavit.” Id. at 911, n. 11. There is no distinction between discovery as to the affidavit facts submitted by the government in AAPS, and the affidavit facts (whatever they may be) that the government proposes to submit here.
Ironically, the defendants cite AAPS when they claim that there is no need to go beyond whatever they deign to provide, because whatever supplemental declarations they will file will be consistent with the “controlling definition” of who is a FACA member, i.e., “someone who ‘regularly attends and fully participates’ in committee meetings.” Def. Objections p. 14, citing AAPS at 915. This citation is telling because it illustrates yet another specific type of factual determination that the AAPS court found it did not have the information to make. The AAPS court would apply this criteria (someone who “regularly attends and fully participates” in working group activities) solely in determining whether “consultants” could be deemed members of the group at issue:
But a consultant may still be properly described as a member of an advisory committee if his involvement and role are functionally indistinguishable from those of the other members. . . . If a “consultant” regularly attends and fully participates in working group meetings as if he were a “member,” he should be regarded as a member.
However, the court could not decide this very specific question because there had been no discovery on this issue.
More to the point, nothing in AAPS suggests that this test for determining the membership status of a consultant is the exclusive test for making “membership” determinations; indeed, there are a number of different and alternative factual scenarios – all within the ambit of the Plaintiffs' allegations -- under which private parties may be determined to have served as formal or de facto members of the Task Force or sub-groups.
In addition, it is worth noting what AAPS had to say about subordinate groups established to assist an advisory body. After determining that the President’s Health Care Task Force was not subject to FACA, the court then turned to the question of the Task Force’s working group (id. at 913):
Our conclusion that the
Task Force is a committee wholly composed of government officials makes this
case entirely different. In contrast
to the situation here, in Anti-Hunger
the top levels of the outside
advisory groups were covered by FACA--both the executive committee of 150 and
the subcommittee of 30. In that
scenario, there is less reason to focus on subordinate advisers or consultants
who are presumably under the control of the superior groups. It is the superior groups, after all, that
will give the advice to the government, and which, in accordance with the
statute, must be "reasonably" balanced. But when the Task Force itself is
considered part of the government--due to the government officials
exemption--we must consider more closely FACA's relevance to the working
group. For it is the working group now
that is the point of contact between the public and the government.
Here, as in AAPS, special attention should be paid to the myriad sub-groups that defendants established, including the Task Force’s own working group as well as the working groups established by each of the federal agencies involved. Here, the government gives absolutely no indication as to what the sub-group “declarations” will contain as to the membership of these entities.[1]
In sum, after noting that in “examin[ing] a particular group or committee to determine whether FACA applies, we must bear in mind that a range of variations exist in terms of the purpose, structure, and personnel of the group” the AAPS Court flatly concluded that “We simply have insufficient material in the record to determine the character of the working group and its members.” AAPS at 915 (emphasis added). The Court then remanded the case for discovery in order to provide all the required information. Thus it is clear that a determination whether FACA applies requires complete information as to “the purpose, structure and personnel of the group,” precisely the information plaintiffs sought in their draft interrogatories and document requests.
Defendants try to distinguish AAPS on the grounds that AAPS proceeded upon an assumed private right of action under FACA, and not, as here, under the APA. Def. Objections, p. 5, n.3. However, by describing all of the information that a court requires in order to determine whether FACA applies, AAPS illustrates precisely why defendants’ “administrative record” proposal cannot work; the administrative "record" proposed by the defendants contains none of the necessary information. Even in APA administrative record cases, a court is free to order the record supplemented if its is clear that the record does not provide a sufficient basis upon which the court can make its decision. Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).
The second fundamental flaw with defendants’ proposal is that it completely misapprehends the administrative record process. Record review under the APA presupposes an underlying agency process that was open to the public or to affected parties. The purpose of that open process is to give these parties the opportunity to provide information and opinions to the agency whose job it is to weigh them and take into account in reaching its decision. There is no need for discovery because the administrative record presumably contains all the evidentiary material necessary for the agency to make its determination, and for a court to review under the APA.
There was no such process and no such decision in this case. Defendants never based any of the final agency actions alleged by the Plaintiffs upon an administrative record; defendants never invited the public to participate in any of these alleged final agency actions, never asked the public to comment on the Task Force, never offered anyone the opportunity to establish that the Task Force or related sub-groups were federal advisory committees subject to FACA. As a result, there is no “administrative record’ upon which the agencies involved could have based any decision, and no administrative record for this court to review. Indeed, defendants continue to insist that there was no agency action at all, and never manage to explain how they can compile an “administrative record” in such circumstances.
This fundamental problem with defendants’ proposal is illustrated by their offer to create a post hoc species of “administrative record” never before seen: “an administrative record (including with appropriate declarations) [sic] on the issue of membership with respect to any alleged subgroups.” Def. Objections, p. 4. Plaintiffs are unfamiliar with the concept of “an administrative record on the issue of membership.” Plaintiffs are more familiar with the concept of an ‘administrative record” for final agency actions, a record which “should include all materials that ‘might have influenced the agency's decision,’ and not merely those on which the agency relied in its final decision.” Amfac Resorts v. U.S. Department of the Interior, 143 F.Supp.2d 7, 12 (D.D.C. 2001). Moreover, this court has identified numerous such final agency actions alleged within plaintiffs’ complaints, including (Mem. Op. p. 31):
Establishing or utilizing the Cheney Task Force and/or its sub-groups;
Failing to open each meeting to the public;
Failing to publish timely notice of each meeting in the Federal Register;
Failing to allow public attendance or statements before the meetings;
Failing to make available for public inspection and copying the records of the Cheney Task Force;
Failing to keep detailed minutes of each meeting;
Failing to file an advisory committee charter.
Defendants, however, do not mention any of these in their proposal to compile an administrative record.
The defendants argue as well that discovery is inappropriate as to the mandamus claims – again conveniently ignoring that this Court has already rejected that argument. The defendants insist that the scope of discovery of the mandamus claims would necessarily be circumscribed by the "administrative record" of the APA claims – yet they cite not a single case to support this novel proposition.
Indeed, the cases the defendants cite support a legal proposition not contested by the plaintiffs, namely, that mandamus is available as an "avenue of extraordinary relief." Def. Objections, p. 7 (citations omitted and emphasis added). Whether this Court will ultimately exercise its equitable powers to order mandamus remedies will presumably flow from a determination of whether federal officials failed to comply with mandatory duties, which federal officials failed to comply, and especially the degree of egregiousness of such a failure (e.g., was the failure deliberate and willful or merely inadvertent.) Those determinations cannot be made – again, as this Court has already ruled -- without the development of the factual record through discovery.
Defendants state that discovery should be limited to interrogatories and should not include plaintiffs’ “broad-ranging” document requests because defendants have already produced documents in the related FOIA cases, “most of which may well be duplicative” of the documents sought here. Def. Objections. p. 15. If the defendants can identify those specific documents they have previously produced that are responsive to the plaintiffs' discovery requests in this case, then obviously there is no need for defendants to duplicate responses;[2] it is not Plaintiffs’ burden to “divine” which documents provided in another case are responsive.
As for the defendants' objections to any future depositions, the plaintiffs respectfully submit that those issues be dealt with when plaintiffs notice depositions.
Respectfully submitted,
______________________
Patrick Gallagher (CA Bar No.146105)
Alex Levinson (CA Bar No.135307)
Sanjay Narayan (CA Bar No. 183227)
Sierra Club
85 Second Street
San Francisco, CA 94104
(415) 977-5696
Email: pat.gallagher@sierraclub.org
David Bookbinder (DC Bar No. 455525)
Sierra Club
Washington, DC 20002
(202) 548-4598
Email: david.bookbinder@sierraclub.org
Roger Adelman (DC Bar No. 056358)
Law Offices of Roger Adelman
1100 Connecticut Avenue, N.W.
Washington, DC 20036
(202) 822-0600
Email: Adelmarm@erols.com
Attorneys for plaintiff Sierra Club
__________________________
Larry Klayman (DC Bar No. 334581)
Paul J. Orfanedes (DC Bar No. 429716)
Judicial Watch, Inc.
501 School Street, SW
Suite 725
Washington, DC 20024
(202) 646-5172
Attorneys for plaintiff Judicial Watch, Inc.
[1] One key difference, at this stage of the litigation, between AAPS and this case, is that the Court does not presently have sufficiently well-developed facts – in contrast to AAPS – to make a determination whether the Cheney Task Force itself was comprised solely of federal officials. As this Court has already ruled, discovery is appropriate as to that issue.
[2] The plaintiffs have reviewed materials produced in the FOIA cases, and the bulk of those materials consist of highly-redacted documents of little probative value; more to the point the materials are generally unresponsive to the discovery categories identified by this Court as appropriate matters for eliciting information that should allow determination of the issues presented in this case.