Cheney v. United States District Court For The District

542 U.S. 367 (2004)

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Nature of the Case

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Facts

President G. W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG). 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.' Five months later, the NEPDG issued a final report and, according to the Government, terminated all operations. Judicial Watch, Inc. and the Sierra Club (Ps) alleged the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act (FACA). FACA was enacted to monitor the 'numerous committees, boards, commissions, councils, and similar groups [that] have been established to advise officers and agencies in the executive branch of the Federal Government,' § 2(a), and to prevent the 'wasteful expenditure of public funds' that may result from their proliferation. FACA imposes a variety of open-meeting and disclosure requirements on groups that meet the definition of an 'advisory committee.' Ps agree that NEPDG was supposed to be 'composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.' 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 thus NEPDG was subject to FACA's requirements. 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 District Court held that FACA's substantive requirements could be enforced against the Vice President and other Government participants on the NEPDG under the Mandamus Act and against the agency defendants under the Administrative Procedure Act (APA). The court allowed Ps to conduct a 'tightly-reined' discovery to ascertain the NEPDG's structure and membership, and thus to determine whether the de facto membership doctrine applies. The District Court explained that the Government could assert executive privilege to protect sensitive materials from disclosure. Ds sought a writ of mandamus. The majority declined to issue the writ on the ground that alternative avenues of relief remained available. It held that Ds, to guard against intrusion into the President's prerogatives, must first assert privilege. The dissent opined that allowing discovery to determine the applicability of the de facto membership doctrine is inappropriate. The Supreme Court granted certiorari.