Cheney v. United States District Court

541 U.S. 913 (2004)

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Nature of the Case

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Facts

President Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG or Group). The President assigned a number of agency heads and assistants--all employees of the Federal Government--to serve as members of the committee. He authorized the Vice President, as chairman of the Group, to invite 'other officers of the Federal Government' to participate 'as appropriate.' The NEPDG issued a final report and, according to the Government, terminated all operations. Judicial Watch and the Sierra Club (P) filed these actions, which were later consolidated alleging the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act (FACA or Act), 5 U. S. C. App. §2, p. 1. President Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG or Group). The President assigned a number of agency heads and assistants--all employees of the Federal Government--to serve as members of the committee. He authorized the Vice President, as chairman of the Group, to invite 'other officers of the Federal Government' to participate 'as appropriate.' The NEPDG issued a final report and, according to the Government, terminated all operations. Judicial Watch and the Sierra Club (P) filed these actions, which were later consolidated alleging the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act. Ps allege that 'non-federal employees,' including 'private lobbyists,' 'regularly attended and fully participated in non-public meetings.' Ps contend that the regular participation of the non-Government individuals made them de facto members of the committee. Cheney (D), the NEPDG, the Government officials who served on the committee, and the alleged de facto members were named as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA's requirements. Ds moved to dismiss. The court acknowledged FACA does not create a private cause of action. It dismissed Ps' claims against the non-Government defendants. The District Court held that FACA's substantive requirements could be enforced against D and other Government participants on the NEPDG under the Mandamus Act, 28 U. S. C. §1361, and against the agency defendants under the Administrative Procedure Act (APA), 5 U. S. C. §706. The District Court recognized the disclosure duty must be clear and nondiscretionary for mandamus to issue, and there must be, among other things, 'final agency actions' for the APA to apply. The District Court approved Ps' discovery plan. Ds sought a writ of mandamus in the Court of Appeals to vacate the discovery orders, to direct the District Court to rule on the basis of the administrative record and to dismiss D from the suit. D filed a notice of appeal from the same orders. The Court of Appeals dismissed the petition for a writ of mandamus and D's attempted interlocutory appeal. The majority declined to issue the writ of mandamus on the ground that alternative avenues of relief remained available. The majority held that Ds, to guard against intrusion into the President's prerogatives, must first assert privilege. The majority rejected D's interlocutory appeal. D had not yet asserted privilege. The Supreme Court granted certiorari.