IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL
WATCH, INC.,
Plaintiff, Civil Action No.
01-1530 (EGS)
v.
NATIONAL
ENERGY POLICY
DEVELOPMENT
GROUP
Defendant.
____________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT’S RESPONSE TO THE
COURT’S ORDER OF JANUARY 31, 2002
Plaintiff, by counsel, respectfully
submits this Response to Defendant’s Response (Def. Resp.”) to the Court’s
Order of January 31, 2002.
MEMORANDUM OF LAW
I. Introduction.
As stated in Plaintiff’s Opposition to
Defendant’s Motion to Dismiss, this case concerns a simple request by the
Plaintiff, Judicial Watch, Inc., to obtain documents regarding Defendant
National Energy Policy Development Group (“NEPDG”) pursuant to 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”).
The facts of this case are strikingly
similar to the controversy surrounding former First Lady Hillary Rodham
Clinton’s Health Care Task Force (“HCTF”), which was created in 1993 to develop
a proposal for reforming health care in the United States. As is the case with the NEPDG, many
individuals and entities had concerns about the operation of the HCTF,
including the identities of the persons participating in the meetings of the
task force, how often these meetings were occurring, and how decisions were
being made which could affect the health care services of every American. One of these groups, the Association of
American Physicians and Surgeons (“AAPS”) filed a request pursuant to the FACA
to obtain documents concerning the meetings and operation of the HCTF. When the AAPS request was summarily denied
by The White House, AAPS filed suit in this Court to obtain expedited discovery
concerning the operation of the HCTF and to compel production of the requested
documents. See Association of
Am. Physicians and Surgeons, Inc., et
al., v. Hillary Rodham Clinton, et al., C.A. No 93-0399 (RCL)
(D.D.C.)
The Hon. Royce C. Lamberth dismissed
AAPS’s FACA claim with respect to a portion of the HCTF known as the “working
group.” See Association of
Am. Physicians and Surgeons, Inc., v. Hillary Rodham Clinton, 813 F. Supp.
82, 95 (D.D.C. 1993). Judge Lamberth,
in dismissing the case in part, and denying AAPS’s request to conduct
discovery, held that the working group was not an advisory committee because it
did not provide advice directly to the President and was engaged in
fact-finding only. Id. at
89. The Court based its ruling in part
on the Declaration of Ira Magaziner, former Senior Advisor to the President,
who represented to the Court that the working group consisted only of federal
workers engaged in fact-finding and that:
“only the Task Force will have authority to forward recommendations to
the President, and only the Task Force will provide advice to the
President. The interdepartmental
working group is not charged with responsibility for making, and will not make,
recommendations to the President, and will not otherwise directly advise
him.” Id.
The United States Court of Appeals for
the District of Columbia reversed the District Court’s decision with respect to
the working group and remanded the case for expedited discovery. Association
of Am. Physicians and Surgeons, Inc. v. Hillary Rodham Clinton, 997 F.2d
898, 915-16 (D.C. Cir. 1993). During
the course of that discovery, both AAPS and the district court learned that
they had received grossly misleading information from Mr. Magaziner and the
HCTF regarding the employment status of the working group. Association of Am. Physicians and
Surgeons, Inc., 989 F.Supp. 8, 10-13 (D.D.C. 1997). Specifically, it turned out that the working
group had both included and frequently met with private individuals. Id.
In that same order, The Hon. Royce C. Lamberth imposed sanctions in the
amount of $285,864.78 on the defendants for the misleading statements that they
had filed with the Court. Id. at
17.
In the instant case, Defendant NEPDG has
stonewalled Plaintiff’s request for documents and discovery concerning NEPDG’s
activities just as the Defendants did in AAPS.
Public reports clearly demonstrate that private individuals met
frequently with the Vice President Cheney and NEPDG, including in The White House,
and that the policy suggestions made by these individuals were implemented by
the NEPDG shortly following these meetings.
See Exhibit 1, Michael Weisskopf and Adam Zagorin, “Getting the
Ear of Dick Cheney,” Time.com, Sunday, Feb. 3, 2002; see also
Plaintiff’s Opposition to Defendant’s Motion to Dismiss (“Pl. Opp.”) at Exhibit
1.
II. Discussion.
Plaintiff initially notes that
Defendant’s Response does not adequately address the issues raised by the Court’s January 31, 2002
Order, which requested that Defendant explain to the Court how permitting
discovery on eight discreet issues would violate Article II of the U.S.
Constitution. In fact, the bulk of
Defendants’ response is little more than a reiteration of arguments made in
Defendant’s motion to dismiss and rebutted in Plaintiff’s opposition thereto.[1]
Defendant attempts to respond to the Court’s
questions regarding by referring to the Court to a May 4, 2001 letter from
David S. Addington, Counsel to Vice-President Cheney, 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. See Def. Resp. at Ex. 1 (“Addington
letter”). However, the Addington letter
raises far more questions than it answers and underscores Plaintiff’s need for
discovery in this matter.
Committee Question (2) requests
information concerning a series of “stakeholder meetings”
held by NEPDG. Id.
at 2. Addington responded by denying
that the NEPDG ever conducted such meetings and claiming that staff members of
NEPDG merely conducted fact-finding sessions with an admittedly “broad
representation of people potentially affected by the groups work.” Id.
Addington states:
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, but such meetings do not involve
deliberations or any effort to achieve consensus on advise or
recommendations. 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.
Id. (emphasis added).
Obviously the accuracy of this statement can only be resolved through
discovery process, particularly since Addington’s response to Congress’
questions are unsworn. Indeed,
Defendant has still failed to file an affidavit in this case supporting its
claim that the NEPDG “consisted exclusively of senior Federal officials” or
that its meetings with non-federal employees consisted of only “fact-finding”
sessions. Nonetheless, the Addington
letter fails to identify who participated in these “fact-finding” sessions,
when they were held, where they were held, how many were held, and what was
discussed. In short, the letter
provides none of the information addressed in the eight points set forth in the
Court’s January 31, 2002 Order. Defendants
has not already made answers to these questions public, as its Response
claims. See Def. Resp. at 8-10.
It is only through discovery that the
Court will be able to determine the answers to these questions, and it simply
cannot be said that discovery into the eight points set forth in the Court’s
January 31, 2002 Order will impermissibly infringe on separation of powers or
violate Article II of the United States Constitution. As Defendant acknowledges, separation of powers and Article II are intended to
respect “the confidences of the President, the Vice-President, and the
President’s senior advisers as they develop recommendations for policy and
legislation -- a core constitutional function of the President.” See Def. Resp. at 11. Defendant argues on the one hand that FACA
does not apply to NEPDG because it “consisted exclusively of senior federal
officials and was chaired by Vice President Cheney,” and that to permit
discovery regarding the eight issues raised by the Court would “require the
President to reveal the precise details of his decision making process.” See Def. Resp. at 2, 7. But Defendant also claims that its sessions
with non-federal employees did not entail any policy deliberations or efforts
to provide advice or recommendations. See
Addington letter at 2, 3. Defendant
cannot have it both ways. It cannot
logically argue that the discovery proposed by the Court will impermissibly
infringe on the President’s decision making process while also asserting that
the crucial, operative meetings -- the NEPDG sessions with non-federal
employees -- were only “fact-finding” sessions where no deliberations were held
and where no efforts were undertaken to make policy recommendations or provide
advice to the President, the Vice-President and their advisors. Defendant
can have no legitimate objection, constitutional or otherwise, to the Court’s
proposed discovery.
Finally, Plaintiff respectfully submits
that it is premature for the Court to make a ruling on Defendant’s argument that
the FACA is unconstitutional as applied to NEPDG before a more complete record
is developed, through discovery proposed by the Court in its January 31, 2002
Order. The AAPS Court allowed
the plaintiff in that case just such discovery into the membership and
functions of the HCTF’s Task Force. 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 (emphasis added). It simply cannot be said that allowing the
limited discovery proposed by the Court raises any constitutional
concerns. If, as Defendant maintains,
its meetings with private individuals were merely “fact-finding” sessions
rather than efforts to “achieve consensus on advise or recommendations” or to
“bring a collective judgment to bear” (see Addington Letter at 2), then
there is no risk of intruding into the deliberations of the President and his
most senior advisors as they “develop recommendations for policy and
legislation.” See Defs. Resp. at
11. If the meetings were more than
“fact-finding” sessions, then the Court will have a record from which to
determine whether the FACA applies. The
proof will be in the 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
CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2002, a true and
correct copy of the foregoing PLAINTIFF’S RESPONSE TO DEFENDANT’S RESPONSE TO
THE COURT’S ORDER OF JANUARY 31, 2002 was served by facsimile and first class
mail, U.S. mail, postage prepaid, on the following:
Attorneys
for Defendant:
Daniel
Bensing, Esq.
U.S.
Department of Justice
Civil
Division, Federal Programs Branch
P.O.
Box 883
Washington,
DC 20044
_________________________
Jason
Aldrich
EXHIBIT 1
Time, February 11, 2002
Copyright 2002 Time Inc. Time
February 11, 2002; Pg. 16 HEADLINE Getting The Ear Of Dick Cheney BYLINE Michael Weisskopf and Adam Zagorin
Dick
Cheney has taken a hard line against the General Accounting Office, refusing
its efforts to get information on meetings held by his energy task force.
Critics suspect that Cheney is stonewalling to conceal the Administration's
links with bankrupt energy giant Enron. But Cheney may be hiding more than
that. Several other energy companies had opportunities to influence the
Administration's energy policy, with both persuasion and money. A key
task-force meeting, sources tell TIME, was held by Cheney in the White House on
May 3. Among attendees were two lobbyists for electric utilities: former
Montana Governor and now G.O.P. chairman Marc Racicot and former G.O.P.
chairman Haley Barbour. Two weeks later, Cheney's report gave the lobbyists
much of what they wanted, including a re-evaluation of a costly clean-air rule,
called the new-source review, which requires new pollution controls when power
plants are expanded. While he was lobbying for these energy interests, Barbour
was also raising at least $ 250,000 for a May 21 G.O.P. gala honoring President
Bush. The group of utilities Barbour was representing, led by Southern Co.,
gave $ 150,000 to the event. The night before the gala, Cheney held a glitzy
reception at the vice-presidential mansion for hundreds of the fete's sponsors
and longtime party donors. Another company that had entree to the Cheney task
force was Peabody Energy, a coal behemoth whose holding company and top officer
have given nearly $ 200,000 to the President and his party since Bush took
office, including $ 25,000 for the May gala. Sources say Peabody chairman Irl Engelhardt
and other energy executives met in March with two task-force members, Energy
Secretary Spencer Abraham and Bush economic adviser Larry Lindsey. Cheney's
group also heard in March from officials from the nuclear-energy
industry--whose trade association, the Nuclear Energy Institute, contributed $
100,000 to the Bush event. Both coal and nuclear power got major endorsements
in the task-force report. Racicot, who stopped lobbying after taking over the
G.O.P. last month, said he didn't raise funds for the Bush bash. Barbour did
not return calls for comment. Cheney spokeswoman Mary Matalin denied any link
between task-force access and fund raising, saying the Veep had no idea who was
financing the gala. --By Michael Weisskopf and Adam Zagorin
[1] Defendant
also argues that, even if the FACA applies to NEPDG, it only applied while
NEPDG was in existence. Since NEPDG
ceased to exist on September 30, 2001, Defendant claims that Plaintiff’s FACA
and FOIA requests are now moot.
Defendant also avers that since NEPDG no longer exists, documents
related to it are no longer accessible because they are now in the custody of
the Vice President. See Def
Resp. at 5-6. However, Plaintiff filed
this action on July 16, 2001, while NEPDG was still operating and while NEPDG
was in custody of the documents Plaintiff seeks. While whether the NEPDG is still in operation is yet another
issue for discovery, it is clearly improper for a defendant in known, on-going
litigation to try to avoid a court’s jurisdiction and frustrate a plaintiff’s
claims by disbanding and transferring custody of documents sought in that
litigation. Plaintiff is still entitled
to adjudication of its timely-brought claims.