In Re: Cheney

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2003 Decided July 8, 2003

No. 02-5354

IN RE: RICHARD B. CHENEY,

VICE PRESIDENT OF THE UNITED STATES, ET AL.,

PETITIONERS

Consolidated with

02–5355, 02–5356

Appeals from the United States District Court

for the District of Columbia

(No. 01cv01530)

(No. 02cv00631)

(No. 02cv01530)

–————

On Petition for Writ of Mandamus

–————

Gregory G. Katsas, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellants.

With him on the emergency petition for writ of mandamus

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

were Theodore B. Olson, Solicitor General, Paul D. Clement,

Deputy Solicitor General, Shannen W. Coffin, Deputy Assis-

tant Attorney General, Mark Stern, Michael S. Raab, Doug-

las Hallward–Driemeier, and Eric D. Miller, Attorneys.

Larry E. Klayman and Sanjay Narayan argued the cause

for appellees. With them on the response were David G.

Bookbinder, Alex Levinson, and Roger M. Adelman.

Before: EDWARDS, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge EDWARDS.

Dissenting opinion filed by Circuit Judge RANDOLPH.

TATEL, Circuit Judge: The Vice President of the United

States and others, all defendants in this suit under the

Federal Advisory Committee Act, petition for a writ of man-

damus vacating the district court’s discovery orders, directing

the district court to rule on the basis of the administrative

record, and ordering dismissal of the Vice President as a

party. Petitioners, however, have failed to satisfy the heavy

burden required to justify the extraordinary remedy of man-

damus: Their challenges to the district court’s legal rulings

can be fully considered on appeal following final judgment,

and their claims of harm can, at least at this stage of the

litigation, be fully cured in the district court. We therefore

dismiss the petition. The Vice President has also filed an

interlocutory appeal from the district court’s rulings. We

lack jurisdiction to entertain that appeal: The collateral order

doctrine does not apply, nor does United States v. Nixon,

where the Supreme Court entertained an interlocutory appeal

because, unlike here, the district court had rejected a claim of

executive privilege.

I.

Shortly after his inauguration, President George W. Bush

issued a memorandum establishing the National Energy Poli-

cy Development Group (NEPDG), a task force charged with

‘‘develop[ing] TTT a national energy policy designed to help

3

the private sector, and government at all levels, promote

dependable, affordable, and environmentally sound production

and distribution of energy for the future.’’ Mem. Establish-

ing National Energy Policy Development Group, Jan. 29,

2001. Established within the Office of the President and

chaired by Vice President Richard B. Cheney, the task force

consisted of six cabinet secretaries, as well as several agency

heads and assistants to the President. Id. The memoran-

dum authorized the Vice President to invite ‘‘other officers of

the Federal Government’’ to participate ‘‘as appropriate.’’ Id.

Five months later, the NEPDG issued a final report recom-

mending a set of energy policies. See NATIONAL ENERGY

POLICY DEVELOPMENT GROUP, NATIONAL ENERGY POLICY: REPORT

OF THE NATIONAL ENERGY POLICY DEVELOPMENT GROUP (2001),

available at http://www.whitehouse.gov/energy/National-

Energy-Policy.pdf.

On July 16, 2001, Judicial Watch, a nonprofit organization

that seeks ‘‘to promote and protect the public interest in

matters of public concern,’’ Second Am. Compl. ¶ 3 (Judicial

Watch Compl.), filed suit in the United States District Court

for the District of Columbia against the NEPDG, the Vice

President, other federal officials, and several private individu-

als, alleging that the NEPDG had failed to comply with the

procedural requirements of the Federal Advisory Committee

Act (FACA), 5 U.S.C. App. 2. Enacted 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,’ ’’ Ass’n of Am. Physi-

cians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 902–03 (D.C.

Cir. 1993) (AAPS) (quoting 5 U.S.C. App. 2, § 2(a)), FACA

requires advisory committees to make public all reports,

records, or other documents used by the committee, provided

they do not fall within any Freedom of Information Act

exemptions. Central to this case, FACA section 3(2) exempts

advisory committees ‘‘composed wholly of full-time officers or

employees of the Federal Government.’’ 5 U.S.C. App. 2,

§ 3(2)(iii).

4

Although the President appointed only federal government

officials to the NEPDG and authorized the Vice President to

add additional ‘‘federal officials,’’ Judicial Watch alleges that

‘‘non-federal employees, including Thomas Kuhn, Kenneth

Lay, Marc Racicot, Haley Barbour, representatives of the

Clean Power Group, and other private lobbyists TTT, regular-

ly 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.’’ Judicial Watch Compl.

¶ 25; see AAPS, 997 F.2d at 915 (holding that the section 3(2)

exemption does not apply if non-government officials’ ‘‘in-

volvement and role are functionally indistinguishable from

those of the other members’’). Brought pursuant to both the

Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the

All Writs Act, 28 U.S.C. § 1361, the complaint sought, among

other things, a judgment declaring the defendants to be in

violation of FACA and an order directing them to provide

plaintiffs ‘‘a full and complete copy of all records TTT made

available to or prepared for Defendant NEPDG,’’ as well as

‘‘detailed minutes of each meeting of Defendant NEPDG TTT

that contain a record of persons present, a complete and

accurate description of matters discussed and conclusions

reached, and copies of all report[s] received, issued, or ap-

proved by Defendant NEPDG.’’ Judicial Watch Compl. at

22.

Before proceedings commenced in the district court, the

Sierra Club, a nonprofit group seeking ‘‘to practice and

promote the responsible use of the Earth’s resources and

ecosystems,’’ filed a virtually identical lawsuit in the United

States District Court for the Northern District of California.

Compl. ¶ 3. The Sierra Club’s suit was subsequently trans-

ferred to the district court here and consolidated with Judicial

Watch’s.

All defendants moved to dismiss, arguing, among other

things, that FACA does not authorize a private cause of

action, that the Vice President cannot be sued under the

APA, and that ‘‘[a]pplication of FACA to the NEPDG’s

operations would directly interfere with the President’s ex-

press constitutional authority including his responsibility to

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recommend legislation to Congress and his power to require

opinions of his department heads.’’ Mem. in Support of Mot.

to Dismiss at 3 (D.D.C. Mar. 8, 2002). Amplifying this latter

point, defendants argued that ‘‘such an expansive reading of

FACA would encroach upon the President’s constitutionally

protected interest in receiving confidential advice from his

chosen advisers, an interest that is also rooted in the principle

of separation of powers.’’ Id. Although the district court

agreed that no private cause of action exists under FACA and

recognized that the Vice President cannot be sued under the

APA, it ruled that FACA could be enforceable through man-

damus. Judicial Watch, Inc. v. Nat’l Energy Policy Dev.

Group, 219 F.Supp. 2d 20, 42 (D.D.C. 2002). Relying on the

‘‘fundamental principle of constitutional interpretation that a

court should not pass on any constitutional questions that are

not necessary to determine the outcome of the case or

controversy before it,’’ id. at 45, the district court deferred

ruling on the government’s separation of powers claim, ex-

plaining that ‘‘after discovery, the government may prevail on

summary judgment on statutory grounds without the need for

this Court to address the constitutionality of applying FACA

[to the Vice President],’’ id. at 54–55. The court observed

that, ‘‘while discovery in this case may raise some constitu-

tional issues, those issues of executive privilege will be much

more limited in scope than the broad constitutional challenge

raised by the government here.’’ Id. at 55.

After denying defendants’ motion to dismiss, the district

court approved plaintiffs’ discovery plan and directed the

government to ‘‘fully comply with the[ ] requests,’’ ‘‘file de-

tailed and precise objections to particular requests,’’ or ‘‘iden-

tify and explain their invocations of privilege with particulari-

ty.’’ Order Approving Disc. Plan at 2 (D.D.C. Aug. 2, 2002).

In response and on behalf of all federal defendants except the

Vice President, the government produced some 36,000 pages

of documents. On behalf of the Vice President, the govern-

ment filed a motion for a protective order, arguing that

discovery against the Vice President would violate the separa-

tion of powers and seeking permission to file a motion for

summary judgment based on the ‘‘administrative record.’’

6

According to the government, the administrative record con-

sists of the President’s memorandum creating the NEPDG,

the NEPDG’s final report, and an affidavit by Karen Knut-

son, Deputy Assistant to the Vice President for Domestic

Policy. Submitted with the motion for a protective order, Ms.

Knutson’s affidavit declares that ‘‘[t]o the best of my knowl-

edge, no one other than the officers of the Federal Govern-

ment who constituted the NEPDG, the Federal employees

whom they chose from their respective departments, agencies

and offices to accompany them (all of whom were full-time

Federal employees), and the Office of the Vice President

personnel set forth above, attended any of the [NEPDG]

meetings.’’ Knutson Aff. ¶ 10.

Although the district court acknowledged that ‘‘[i]n APA

cases, discovery is normally frowned upon,’’ it stated that it

would not consider a motion for summary judgment until

after discovery, explaining that ‘‘this case isn’t the typical

case, where you have a significant administrative record.’’

Tr. of Status Hr’g at 13:17–23 (D.D.C. Aug. 2, 2002). The

court therefore denied the government’s motion for a protec-

tive order and directed defendants to ‘‘produce non-privileged

documents and a privilege log.’’ Order Den. Mots. for Re-

cons. and Protective Order at 1 (D.D.C. Oct. 17, 2002). The

court informed the parties that it was considering either

reviewing allegedly privileged information in camera or ap-

pointing a special master, such as a retired judge, to review

privilege claims. Tr. of Omnibus Mots. Hr’g at 4:15–5:12

(D.D.C. Oct. 17, 2002).

Instead of responding to plaintiffs’ discovery requests and

filing a privilege log, defendants asked the district court to

certify an interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b). The district court declined, Mem. Op. and Order

(D.D.C. Nov. 27, 2002), and defendants filed in this court an

emergency motion for writ of mandamus pursuant to 28

U.S.C. § 1651 seeking an order ‘‘vacat[ing] the discovery

orders issued by the district court, direct[ing] the court to

decide the case on the basis of the administrative record and

such supplemental affidavits as it may require, and direct[ing]

that the Vice President be dismissed as a defendant.’’ Emer-

7

gency Pet. for Writ of Mandamus at 20. The Vice President

also filed a notice of appeal from the district court’s order

denying the motion to dismiss and from the various discovery

orders. Plaintiffs opposed the mandamus petition and filed a

motion to dismiss the interlocutory appeal. We granted an

administrative stay and heard oral argument on April 17,

2003.

Now before us are the petition for a writ of mandamus and

the plaintiffs’ motion to dismiss the appeal. We address each

in turn.

II.

In considering the petition for a writ of mandamus, we are

bound by well-established rules of both the Supreme Court

and this court. ‘‘The remedy of mandamus,’’ the Supreme

Court has explained, ‘‘is a drastic one, to be invoked only in

extraordinary situations.’’ Kerr v. United States Dist. Court,

426 U.S. 394, 401 (1976) (internal citations omitted). ‘‘[O]nly

exceptional circumstances amounting to a judicial ‘usurpation

of power’ will justify the invocation of this extraordinary

remedy.’’ Will v. United States, 389 U.S. 90, 95 (1967).

Emphasizing the rarity of mandamus relief, the Supreme

Court noted that ‘‘our cases have answered the question as to

the availability of mandamus TTT with the refrain: ‘What

never? Well, hardly ever!’ ’’ Allied Chem. Corp. v. Daiflon,

Inc., 449 U.S. 33, 36 (1980) (emphasis in original).

In Kerr, the Supreme Court explained the policy underly-

ing the limited nature of mandamus relief:

[P]articularly in an era of excessively crowded lower

court dockets, it is in the interest of the fair and

prompt administration of justice to discourage piece-

meal litigation. It has been Congress’ determination

since the Judiciary Act of 1789 that as a general rule

‘appellate review should be postponed TTT until after

final judgment has been rendered by the trial court.’

A judicial readiness to issue the writ of mandamus in

anything less than an extraordinary situation would

run the real risk of defeating the very policies

8

sought to be furthered by that judgment of Con-

gress.

Kerr, 426 U.S. at 403 (internal citations omitted) (ellipses in

original).

Consistent with these principles, in determining whether

mandamus is warranted, we consider ‘‘whether the party

seeking the writ has any other adequate means, such as a

direct appeal, to attain the desired relief,’’ and ‘‘whether that

party will be harmed in a way not correctable on appeal.’’

Nat’l Ass’n of Criminal Def. Lawyers, Inc. v. United States

Dep’t of Justice, 182 F.3d 981, 986 (D.C. Cir. 1999). Petition-

er ‘‘has the ‘burden of showing that its right to issuance of the

writ is clear and indisputable.’ ’’ Gulfstream Aerospace Corp.

v. Mayacama Corp., 485 U.S. 271, 289 (1988).

Our recent decision in In re Executive Office of the Presi-

dent, 215 F.3d 20 (D.C. Cir. 2000), not only demonstrates the

strictness of the mandamus standard, but also largely con-

trols the disposition of this case. There, plaintiff alleged,

among other things, that President Clinton’s personal staff

and other White House units that advise and assist the

President were maintaining FBI files of former political

appointees in violation of the Privacy Act. The district court

denied the government’s motion to dismiss, ordered discov-

ery, and rejected the White House’s assertion of the attorney

client, deliberative process, and work product privileges. The

government then sought a writ of mandamus to vacate the

district court’s discovery order with respect to one particular

interrogatory. The government also argued that without

mandamus relief ‘‘the President’s interactions with his closest

advisors will be irreparably damaged in the future, because

the District Court has sought to coerce the White House, on

threat of criminal sanction, into following a view of the

Privacy Act to which it does not subscribe.’’ Id. at 24.

Noting that ‘‘[a]lmost the entire thrust of [the govern-

ment’s] petition is that the District Court erred in concluding

that the White House is subject to the Privacy Act,’’ we

explained that ‘‘[e]ven assuming, arguendo, that the District

9

Court’s holding on the scope of the Privacy Act is clear error,

mandamus relief is not warranted in this case. This is so

because, on the record at hand, there has been no showing of

harm of the sort required to justify the drastic remedy of

mandamus.’’ Id. at 23. Further, although acknowledging

that ‘‘ ‘disclosure [of highly privileged material] followed by

appeal after final judgment is obviously not adequate in such

cases—the cat is out of the bag,’ ’’ id. (bracketed material in

original), we observed that ‘‘[i]n the normal course, TTT

mandamus is not available to review a discovery order,’’ id.

We then denied the request for mandamus, explaining that

the government ‘‘offered TTT no argument that it is even

entitled to the privileges,’’ and that ‘‘[a]bsent a viable claim

that some important privilege will be infringed if discovery is

allowed to proceed, this court has no jurisdiction to review the

interlocutory order on this ground.’’ Id. at 23–24. As to the

government’s fear that the district court might hold White

House staff in criminal contempt, we explained, ‘‘the District

Court has no free-wheeling authority to run the affairs of the

White House with respect to matters that are not related to

the instant case.’’ Id. at 24.

With this case law in mind, we consider the petition for writ

of mandamus. Petitioners first argue that by allowing broad

discovery into ‘‘the inner workings of the executive including

the Vice President,’’ Emergency Pet. for Writ of Mandamus

at 12, on nothing more than a ‘‘mere allegation of TTT

unofficial non-government’’ participation in the work of the

NEPDG, the district court has ‘‘brought to the fore the

substantial constitutional questions it sought to avoid,’’ id. at

14. Petitioners therefore ask that we direct the district court

to decide the case on the basis of the administrative record.

For two reasons, we may not do so.

First, as petitioners concede, plaintiffs’ cause of action

against the Vice President arises not under the APA, but

under the Mandamus Act. 28 U.S.C. § 1361. Cf. Chamber of

Commerce v. Reich, 74 F.3d 1322, 1326–28 (D.C. Cir. 1996)

(explaining availability of ‘‘non-statutory review’’ even in the

absence of a statutory cause of action). Moreover, even if

APA review standards apply to mandamus actions—a ques-

tion we need not resolve here—the rule that APA review is

10

generally limited to the administrative record has two excep-

tions: ‘‘when there has been a ‘strong showing of bad faith or

improper behavior’ or when the record is so bare that it

prevents effective judicial review.’’ Commercial Drapery

Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir.

1998) (internal citation omitted). Petitioners argue that

plaintiffs have not made the ‘‘strong showing’’ required by the

first exception. This is true, but plaintiffs do not invoke the

first exception. Instead, they rely on the second exception,

arguing that the record is inadequate to resolve the statutory

issue pending before the district court. As they point out,

the President’s memorandum establishing the NEPDG and

the NEPDG’s final report tell us only that the NEPDG’s

members were all federal employees. The two documents

reveal nothing about whether, notwithstanding the Presi-

dent’s appointment of only federal officials, non-federal per-

sonnel participated in the work of the NEPDG ‘‘as if they

were members of the NEPDG.’’ Judicial Watch Compl. ¶ 25.

Although the Knutson affidavit does address this question,

because the government submitted it during litigation, it is

not itself part of the administrative record. See Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971)

(administrative record does not include ‘‘litigation affidavits’’);

Envtl. Def. Fund, Inc., v. Costle, 657 F.2d 275, 286 (D.C. Cir.

1981) (rejecting creation of exception to Overton Park to

allow parties challenging administrative action to submit affi-

davits addressing the merits of the agency decision).

As respondents point out, we faced a similar issue in

AAPS. There, plaintiffs alleged that another presidential

committee—President Clinton’s Task Force on National

Health Care Reform—failed to follow FACA’s procedural

requirements. We held that in determining the applicability

of FACA section 3(2)’s exemption for meetings of full-time

government officials, we would look beyond formal member-

ship to whether persons described as consultants ‘‘may still

be properly described as member[s] of an advisory committee

if [their] involvement and role are functionally indistinguish-

able from those of the other members.’’ AAPS, 997 F.2d at

915. To answer that question—essentially the same question

11

the district court faces here—we remanded for ‘‘expedited

discovery.’’ Id. at 916.

Second, and most important given the interlocutory status

of this case, even were there some doubt about the district

court’s refusal to rely on the administrative record—indeed,

even if, as petitioners insist, AAPS is distinguishable from

this case and the district court’s ruling amounts to ‘‘clear and

significant error,’’ Emergency Pet. for Writ of Mandamus at

5—petitioners are entitled to mandamus relief only if they

face a risk of harm that cannot be cured in the district court.

This is the teaching of the mandamus cases discussed above.

Absent harm for which there is ‘‘no other adequate means TTT

[of] attain[ing] the desired relief,’’ Nat’l Ass’n of Criminal

Def. Lawyers, 182 F.3d at 986, appellate courts may not grant

mandamus relief from a district court’s legal judgment even if

that judgment constitutes ‘‘clear error,’’ In re Executive

Office of the President, 215 F.3d at 23. ‘‘[A]ny error—even a

clear one—could be corrected on appeal.’’ Nat’l Ass’n of

Criminal Def. Lawyers, 182 F.3d at 987. Because this is

equally true of petitioners’ second challenge—that the district

court erred by failing to dismiss the Vice President as a

party—we turn to the key issue on which petitioners’ entitle-

ment to mandamus relief depends: Have they identified some

‘‘harm’’ flowing from the district court’s challenged rulings

that cannot be remedied either in the district court or on

appeal following final judgment?

Petitioners’ primary claim of harm is that ‘‘in the circum-

stances of this case, TTT extending the legislative and judicial

powers to compel a Vice President to disclose to private

persons the details of the process by which a President

obtains information and advice from the Vice President raises

separation of powers problems of the first order.’’ Emergen-

cy Pet. for Writ of Mandamus at 4. Under the circumstances

of this case, however, this argument is premature. Far from

‘‘order[ing] extensive disclosure of communications between

senior executive branch officials and those with information

relevant to advice that was being formulated for the Presi-

dent,’’ Reply to Appellees’ Resp. to Emergency Pet. for Writ

of Mandamus at 1, the district court ordered defendants to

12

produce ‘‘non-privileged documents and a privilege log.’’ Or-

der Den. Mots. for Recons. and Protective Order at 1 (D.D.C.

Oct. 17, 2002). Petitioners neither produced a privilege log

nor, as directed by the district court’s earlier order, did they

invoke ‘‘privileges with particularity.’’ Order Approving Disc.

Plan at 2 (D.D.C. Aug. 2, 2002). If mandamus was inappro-

priate in Executive Office of the President, where the Presi-

dent had asserted but failed to justify asserted privileges, it is

certainly unjustified here, where petitioners have yet to as-

sert a privilege in the district court. ‘‘Absent a viable claim

that some important privilege will be infringed if discovery is

allowed to proceed, this court has no jurisdiction to review the

interlocutory order.’’ In re Executive Office of the President,

215 F.3d at 24.

Moreover, petitioners’ concerns about the potential disclo-

sure of privileged information are fully addressable in the

district court or, if necessary, in a later proceeding here. If,

in response to the district court’s discovery order, petitioners

choose to invoke executive or any other privilege, that court,

keeping in mind the need to ‘‘accord[ ] high respect to the

representations made on behalf of the President,’’ United

States v. Nixon, 418 U.S. 683, 707 (1974), may sustain the

privilege, thus giving petitioners all the relief they seek here.

See Kerr, 426 U.S. at 401 (denying mandamus petition chal-

lenging district court order rejecting broad state secrets

privilege and allowing disclosure of state documents regard-

ing prison-parole system because district court could review

documents in camera to determine privilege’s applicability).

On the other hand, were the district court to reject a claim of

executive privilege, thus creating an imminent risk of disclo-

sure of allegedly protected presidential communications, then

mandamus might well be appropriate to avoid letting ‘‘the cat

TTT out of the bag.’’ In re Executive Office of the President,

215 F.3d at 23–24; see In re Papandreou, 139 F.3d 247 (D.C.

Cir. 1998) (granting mandamus relief of district court order

that diplomats submit to depositions in order to review diplo-

mats’ assertion of immunity); In re: Sealed Case, 151 F.3d

1059 (D.C. Cir. 1998) (granting mandamus where district

court’s discovery order was insufficiently protective of secret

13

grand jury information). But so long as the separation of

powers conflict that petitioners anticipate remains hypotheti-

cal, we have no authority to exercise the extraordinary reme-

dy of mandamus. As we said in Executive Office of the

President, ‘‘[i]n the normal course, TTT mandamus is not

available to review a discovery order.’’ 215 F.3d at 23.

Petitioners next argue that in order to protect the separa-

tion of powers, the ‘‘President should not be forced to ‘consid-

er the privilege question’ in response to unnecessarily broad

or otherwise improper discovery.’’ Emergency Pet. for Writ

of Mandamus at 15 (internal citation omitted). We see two

answers to this argument. First, executive privilege is itself

designed to protect the separation of powers. ‘‘The privi-

lege,’’ the Supreme Court explained in United States v.

Nixon, ‘‘is fundamental to the operation of Government and

inextricably rooted in the separation of powers under the

Constitution.’’ Nixon, 418 U.S. at 708. Were we to hold, as

petitioners and the dissent urge, that the Constitution pro-

tects the President and Vice President from ever having to

invoke executive privilege, we would have transformed execu-

tive privilege from a doctrine designed to protect presidential

communications into virtual immunity from suit. Yet, as the

Supreme Court also held in Nixon, ‘‘neither the doctrine of

separation of powers, nor the need for confidentiality of high-

level communications, without more, can sustain an absolute,

unqualified Presidential privilege of immunity from judicial

process under all circumstances.’’ Id. at 707. Indeed, the

Supreme Court has consistently held that because the Presi-

dent is not ‘‘above the law,’’ he is subject to judicial process.

Id. at 715; see also Clinton v. Jones, 520 U.S. 681, 703–04

(1997).

The second answer to petitioners’ argument is that their

worry about ‘‘unnecessarily broad’’ discovery can be resolved

in the district court. According to petitioners, discovery is

excessive because (1) they have already produced some 36,000

pages worth of documents and (2) the discovery ‘‘compelled

by the district court would result in even more sweeping

intrusions into the Vice President’s office than would result

from the remedies available if plaintiffs were to prevail on the

14

merits of their suit.’’ Emergency Pet. for Writ of Mandamus

at 4.

The district court has already addressed the first concern.

In its order approving plaintiffs’ discovery plan, the district

court expressly stated: ‘‘[S]hould defendants believe that

documents or information that they have already released to

plaintiffs in different fora are responsive to these discovery

requests, defendants shall bear the burden of identifying with

detailed precision what information or documents have been

so released, and to which discovery requests they believe the

information or documents to be responsive.’’ Order Approv-

ing Disc. Plan at 2 (Aug. 2, 2002). Petitioners have yet to

avail themselves of this aspect of the district court’s order.

Petitioners’ second concern is well taken. If the district

court ultimately determines that the NEPDG is subject to

FACA, plaintiffs would be entitled to ‘‘records, reports, tran-

scripts, minutes, appendixes, working papers, drafts, studies,

agenda, or other documents which were made available to or

prepared for or by [the] TTT committee.’’ 5 U.S.C. App. 2,

§ 10(b). Yet plaintiffs’ discovery seeks far more than these

limited items. Their third interrogatory, for example, asks

for the names of ‘‘all Task Force staff, personnel, consultants,

employees, and all other persons who participated, in any

manner, in the activities of the Task Force or the preparation

of the Report.’’ The fourth interrogatory asks ‘‘[f]or each

person listed in response to Interrogatory 3, TTT please

provide TTT a description of the person’s role in the activities

of the Task Force and in preparation of the Report.’’ The

requests to produce also go well beyond FACA’s require-

ments. For example, the first request seeks ‘‘[a]ll documents

identifying or referring to any staff, personnel, contractors,

consultants or employees of the Task Force.’’ As petitioners

point out, if plaintiffs are entitled to ‘‘discovery TTT roughly

coextensive with the available remedies for a FACA violation,

then the textual exemption of advisory groups including only

government officials, which presumably was designed to pro-

tect against undue interference with executive functions, has

little practical effect.’’ Emergency Pet. for Writ of Manda-

mus at 14.

15

Plaintiffs’ discovery also goes well beyond what they need

to prove, as they allege, that FACA applies to the NEPDG,

i.e., that non-federal officials participated to the extent that

they were effectively NEPDG members. For example, plain-

tiffs have no need for the names of ‘‘all TTT persons’’ who

participated in the Task Force’s activities, nor ‘‘a description

of [each] person’s role in the activities of the Task Force.’’

They must discover only whether non-federal officials partici-

pated, and if so, to what extent. Nor do plaintiffs require

‘‘[a]ll documents identifying or referring to any staff, person-

nel, contractors, consultants or employees of the Task Force.’’

Rather, they need only documents referring to the involve-

ment of non-federal officials.

Although petitioners did raise the question of excessive

discovery in the district court, they did so in support of their

plea for a ‘‘protective order relieving [defendants] of any

obligation to respond to plaintiffs’ discovery.’’ Mem. in Supp.

of Defs.’ Mot. for a Protective Order and for Recons. at 21

(D.D.C. Sept. 3, 2002) (emphasis added). As far as we can

tell, petitioners never asked the district court to narrow

discovery to those matters plaintiffs need to support their

allegation that FACA applies to the NEPDG. Moreover, we

are confident that the district court, whose pending discovery

order invites petitioners to file ‘‘objections,’’ will, consistent

with the judiciary’s responsibility to police the separation of

powers in litigation involving the executive, respond to peti-

tioners’ concern and narrow discovery to ensure plaintiffs

obtain no more than they need to prove their case.

In thus relying on the district court to protect petitioners

from harm, we are following closely in the Supreme Court’s

footsteps in Kerr. There, the Court affirmed the Court of

Appeals’ denial of a writ of mandamus sought by a state

agency challenging a district court’s order granting a motion

to compel discovery. Even though ‘‘the opinion below might

be regarded as ambiguous,’’ the Court explained, ‘‘we are

fortified in our reading of it by a recognition of the serious

consequences which could flow from an unwarranted failure

to grant petitioners the opportunity to have the documents

reviewed by the trial judge in camera before being compelled

16

to turn them over.’’ Kerr, 426 U.S. at 405. The Supreme

Court thus read the Court of Appeals’ opinion as ‘‘providing

petitioners an avenue far short of mandamus to achieve

precisely the relief they seek.’’ Id. at 404–05. ‘‘We are thus

confident,’’ the Court concluded, ‘‘that the Court of Appeals

did in fact intend to afford the petitioners the opportunity to

apply for and, upon proper application, receive in camera

review.’’ Id. at 406. We are equally confident that the

district court here will protect petitioners’ legitimate interests

and keep discovery within appropriate limits—or as the dis-

trict court itself put it, ‘‘tightly reined discovery.’’ Mem. Op.

and Order at 32 (D.D.C. Nov. 27, 2002).

In sum, petitioners have not satisfied the heavy burden

necessary to obtain a writ of mandamus. Their legal chal-

lenges to the district court’s refusal to proceed on the basis of

the administrative record and to dismiss the Vice President

can be fully addressed, untethered by anything we have said

here, on appeal following final judgment. In the meantime,

narrow, carefully focused discovery will fully protect the Vice

President: Either the Vice President will have no need to

claim privilege, or if he does, then the district court’s express

willingness to entertain privilege claims and to review alleg-

edly privileged documents in camera will prevent any harm.

Moreover, such measures will enable the district court to

resolve the statutory question—whether FACA applies to the

NEPDG—without ‘‘sweeping intrusions into the Presidency

and Vice Presidency.’’ Emergency Pet. for Writ of Manda-

mus at 8. And if after limited discovery, it turns out that no

non-federal personnel participated as de facto NEPDG mem-

bers, the district court will never have to face the serious

constitutional issue lurking in this case—whether FACA can

be constitutionally applied to the President and Vice Presi-

dent. If, on the other hand, the district court not only

determines that FACA applies to the NEPDG, but also

rejects petitioners’ constitutional challenge to the application

of the Act, both issues can be fully addressed on appeal

following final judgment.

We end with some comments about the dissent. According

to the dissent, AAPS is wrong, General Services Administra-

17

tion regulations preclude the de facto membership theory, the

district court is without jurisdiction, and the case should be

remanded with instructions to dismiss. We may not reach

these issues for several reasons. To begin with, AAPS is

circuit law binding on this panel. As we have explained:

The ‘‘decision of a [panel]’’ is ‘‘the decision of the

court.’’ Were matters otherwise, the finality of our

appellate decisions would yield to constant conflicts

within the circuit. One three-judge panel, therefore,

does not have the authority to overrule another

three-judge panel of the court. That power may be

exercised only by the full court, either through an in

banc decision, or pursuant to the more informal

practice adopted in Irons v. Diamond.

LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en

banc) (internal citations omitted). See also Joo v. Japan, No.

01–7169, slip op. at 13 (D.C. Cir. June 27, 2003) (panel of

judges is bound by circuit precedent).

Even were we not bound by AAPS, we could not consider

the dissent’s arguments because petitioners raised not one of

them—not in the district court, not in their appellate briefs,

not even at oral argument. Instead, petitioners argue that

AAPS is distinguishable, not wrong; they never mention the

GSA regulations; and they argue that the constitutional

questions can be avoided by remanding to the district court

with instructions to decide the case on the basis of the

administrative record. This court has long held that ‘‘[t]he

premise of our adversarial system is that appellate courts do

not sit as self-directed boards of legal inquiry and research,

but essentially as arbiters of legal questions presented and

argued by the parties before them.’’ Carducci v. Regan, 714

F.2d 171, 177 (D.C. Cir. 1983).

Recognizing that appellate courts sit to resolve only legal

questions presented and argued by the parties, the dissent

maintains that we must nevertheless address these new argu-

ments because they go to the jurisdiction of the district court.

Specifically, pointing out that the only viable claim against the

Vice President rests on mandamus, the dissent argues that

18

given the constitutional concerns and the GSA regulations,

plaintiffs have no ‘‘ ‘clear and indisputable’ right to relief.’’

Dissent at 2 (citation omitted). The defect in this argument

is that it ignores AAPS. Because that decision holds that

FACA permits a cause of action on the ‘‘de facto member-

ship’’ theory, the district court ‘‘clear[ly]’’ has jurisdiction to

entertain plaintiffs’ mandamus action. Plaintiffs may or may

not prevail, but under the law of this circuit, the district

court’s jurisdiction is not in doubt. According to the dissent’s

theory, moreover, all statutory defenses to mandamus actions

become jurisdictional, allowing defendants who fail to prevail

on motions to dismiss to seek immediate appellate review.

Nothing in our case law supports such a result.

The arguments raised by the dissent are also premature.

Following limited discovery, the district court may find, as

the Knutson affidavit claims, that no non-federal personnel

participated in the NEPDG’s activities. That would end the

case, leaving no need to address the constitutional issues

raised by the dissent. If, on the other hand, discovery

reveals some degree of participation by non-federal person-

nel, then the district court will have to decide whether that

participation amounts to de facto membership. Only if the

participation in fact amounts to such membership will the

court have to resolve the constitutional issue—subject, of

course, to appellate review following final judgment.

The dissent contends that mandamus relief is nevertheless

required because even though petitioners have made no claim

of privilege, the mere need to assert privilege will ‘‘distract[ ]

and divert[ ] [the President] from the performance of his

constitutional duties and responsibilities.’’ Dissent at 8. This

argument too is foreclosed by circuit precedent. As we held

in Executive Office of the President, mandamus relief is

inappropriate ‘‘[a]bsent a viable claim that some important

privilege will be infringed if discovery is allowed to proceed.’’

215 F.3d at 24.

Finally, and contrary to the dissent, we are confident that

this opinion fully responds to the constitutional arguments

presented in this case. As we have explained, petitioners’

19

primary argument—that the broad discovery plaintiffs seek

will violate the separation of powers—is premature. Petition-

ers have yet to invoke executive privilege, which is itself

designed to protect the separation of powers, see infra p. 13,

and the narrow discovery we expect the district court to allow

may avoid the need for petitioners even to invoke the privi-

lege. Petitioners also argue that applying FACA to the

NEPDG would itself violate the separation of powers. As we

have explained, resolution of this issue is also premature, for

it assumes the answer to the question the district court has

yet to resolve: Is the NEPDG a FACA advisory committee?

Not until the district court answers that question and only if

it determines that the NEPDG is in fact an advisory commit-

tee will that constitutional question be ripe for resolution.

See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345–

48 (Brandeis, J., concurring) (courts should only rule on

constitutional issues as a last resort).

III.

The Vice President’s appeal of the district court’s denial of

the motion to dismiss and discovery orders requires little

discussion. In general, only final orders are appealable. 28

U.S.C. § 1291. Circuit courts have jurisdiction over interloc-

utory appeals if the requirements of the collateral order

doctrine apply, that is, if the challenged order ‘‘finally deter-

mine[s] claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied

review and too independent of the cause itself to require that

appellate consideration be deferred until the whole case is

adjudicated.’’ Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949).

Largely for the reasons given above, none of the orders the

Vice President seeks to appeal satisfies the collateral order

doctrine. See In re Sealed Case, 151 F.3d at 1063 n.4

(describing similarities between tests for appellate review of

interlocutory appeals under mandamus and collateral order

doctrine). The Vice President does not argue otherwise.

Instead, he asserts that we have jurisdiction to hear his

20

appeal pursuant to United States v. Nixon, 418 U.S. 683

(1974). There, the district court had approved subpoenas for

audiotapes that President Nixon claimed were protected by

executive privilege. Permitting an interlocutory appeal of

this otherwise non-appealable order, the Supreme Court ex-

plained that it would be ‘‘unseemly, and would present an

unnecessary occasion for constitutional confrontation between

two branches of the Government,’’ to require President Nixon

to follow the traditional path for perfecting his appeal, name-

ly, ‘‘ ‘resist[ing] TTT [the court’s] order with the concomitant

possibility of an adjudication of contempt if his claims are

rejected on appeal.’ ’’ Id. at 691, 692 (quoting United States

v. Ryan, 402 U.S. 530, 533 (1971)).

This case is very different. Because the Vice President has

yet to invoke executive privilege, we are not confronted with

the ‘‘unseemly’’ prospect of forcing him to choose between

either (1) disclosing allegedly privileged information and ap-

pealing following final judgment after the ‘‘cat is out of the

bag,’’ or (2) refusing to disclose and going into criminal

contempt in order to create an appealable order. Absent this

constitutionally troubling choice, Nixon is inapplicable.

At oral argument, the government contended that applying

Nixon to this case would amount to a ‘‘modest extension.’’

Tr. of Oral Arg. at 5:10. We disagree. Including the Vice

President’s appeal within Nixon’s ambit would convert a

narrow exception designed to protect fundamental privileges

into a blanket exception to the collateral order rule in suits

against the executive. This court has no authority to ‘‘ex-

tend’’ the law beyond its well-prescribed bounds.

IV.

The petition for mandamus is dismissed and the motion to

dismiss the appeal is granted.

So ordered.

1

EDWARDS, Circuit Judge, concurring: I concur in the ma-

jority opinion, because, in my view, it faithfully adheres to the

law of the circuit and correctly decides the matter at hand. I

also agree with the dissenting opinion insofar as it acknowl-

edges that Association of American Physicians and Sur-

geons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993)

(‘‘AAPS’’), is the law of the circuit and that the Government’s

position cannot withstand scrutiny under AAPS. We are

bound to follow the law of the circuit. Therefore, the Govern-

ment’s petition must be denied.

The Government comes to this court seeking mandamus or

collateral order review on an interlocutory appeal, to block

discovery, having never claimed that any of the disputed

material is privileged and having never responded to the

District Court’s invitation to specify their objections to the

disputed discovery orders. The Government merely claims

that interlocutory review is appropriate because this case

implicates ‘‘separation of powers’’ issues. This is an extraor-

dinary proposition. There is no legal authority of which I am

aware – and the Government cites none – to support jurisdic-

tion in this court.

I suspect that, on remand, the Government may be able

effectively to challenge the breadth of the disputed discovery

order. I also suspect that, once these objections have been

raised, the District Court will tailor the discovery order.

Until the Government voices its objections, however, this

court has no jurisdiction to meddle in a dispute over a

discovery issue that should properly be resolved by the

District Court in the first instance.

Under 28 U.S.C. § 1291, discovery orders are appealable

only after entry of final judgment in the underlying case, or

under the ‘‘collateral order’’ doctrine upon entry of an order

holding the litigant in criminal contempt. See Byrd v. Reno,

180 F.3d 298, 302 (D.C. Cir. 1999); In re Kessler, 100 F.3d

1015, 1016 (D.C. Cir. 1997). There clearly has been no final

judgment in the underlying case here, and no criminal con-

tempt order. The Government’s only authority for asserting

that the discovery order is appealable under § 1291 despite

2

the absence of a final order is United States v. Nixon, 418

U.S. 683 (1974). But, as the majority notes, Nixon is inappo-

site, because that case involved a situation in which discovery

was ordered in the face of the President’s assertion of execu-

tive privilege. The Government has asserted no privilege in

this case. There is no other basis for an invocation of the

collateral order doctrine in this case and the Government

does not suggest otherwise.

Rather, this case focuses principally on the Government’s

request for mandamus relief. Mandamus ‘‘is reserved for

extraordinary circumstances in which the petitioner demon-

strates that his right to issuance of the writ is clear and

indisputable and that no other adequate means to obtain

relief exist.’’ Byrd, 180 F.3d at 302. ‘‘[O]nly exceptional

circumstances amounting to a judicial usurpation of power

will justify the invocation of this extraordinary remedy.’’

Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S. 394,

402 (1976) (citation and internal quotation marks omitted).

Applying this well-understood test, the Government can point

to no basis for mandamus at this juncture, because it can

point to no harm. And it can point to no harm because it has

yet to specify any privileged materials or otherwise cite

objections for consideration by the District Court. It is not

enough for the Government to come to this court and claim

that discovery may expose materials that are protected by

privilege or the deliberative process. It must first specify its

objections so that they may be addressed by the District

Court.

The Government suggests that interlocutory review is ap-

propriate here, because the District Court is bound to consid-

er only the ‘‘administrative record,’’ sans discovery, with

respect to any of plaintiffs’ claims resting on the Administra-

tive Procedure Act (‘‘APA’’). This argument is premised on

an erroneous view of the law. In the Supreme Court’s

seminal decision in Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 420 (1971), the Court made it clear that

there are circumstances in which discovery or testimony by

agency officials may be necessary and appropriate to resolve

an APA claim arising in District Court. In that case, the

3

Supreme Court stated that judicial review was ‘‘to be based

on the full administrative record that was before the Secre-

tary at the time he made his decision. But since the bare

record may not disclose the factors that were considered or

the Secretary’s construction of the evidence,’’ the District

Court could ‘‘require the administrative officials who partici-

pated in the decision to give testimony explaining their ac-

tion.’’ Id. And in AAPS, we found it entirely appropriate to

remand for expedited discovery to determine whether a work-

ing group was an advisory committee under the Federal

Advisory Committee Act (‘‘FACA’’). See AAPS, 997 F.2d at

915-16. In short, tailored discovery may be necessary to

determine the question whether a disputed committee is

subject to FACA’s strictures.

The decision in AAPS is perfectly consistent with both

Overton Park and the law of this circuit. In Commercial

Drapery Contractors, Inc. v. United States, 133 F.3d 1 (D.C.

Cir. 1998), this court plainly stated that judicial review prop-

erly may involve more than just the administrative record in

an APA case ‘‘when there has been a ‘strong showing of bad

faith or improper behavior’ or when the record is so bare that

it prevents effective judicial review.’’ Id. at 7 (emphasis

added) (citing Overton Park, 401 U.S. at 420; Community for

Creative Non-Violence v. Lujan, 908 F.2d 992, 997-98 (D.C.

Cir. 1990)). The dissent cites a Second Circuit case, National

Nutritional Foods Association v. FDA, 491 F.2d 1141, 1145

(2d Cir. 1974), for the proposition that discovery into the

internal workings of Government is not allowed without

‘‘strong preliminary showings of bad faith.’’ But this is an

incomplete characterization of National Nutritional Foods,

which fully recognized that Overton Park did not necessarily

and always require a showing of bad faith. See id.; see also

Overton Park, 401 U.S. at 420 (‘‘[W]here there are adminis-

trative findings that were made at the same time as the

decision TTT there must be a strong showing of bad faith or

improper behavior before such inquiry may be made. But

here there are no such formal findings and it may be that the

only way there can be effective judicial review is by examin-

ing the decisionmakers themselves.’’).

4

Overton Park and Commercial Drapery make it clear that

the exception to the rule of no discovery in APA cases is

wider than bad faith. Thus, the absence of any showing of

bad faith in this case is immaterial, because plaintiffs here

seek discovery on the ground that the administrative record

is inadequate for judicial review. And there is no serious

doubt here – just as there was none in AAPS – that the bare

administrative record does not allow for meaningful judicial

review of plaintiffs’ claim. Therefore, reasonable and careful-

ly tailored discovery is legally permissible and entirely appro-

priate in this case. See AAPS, 997 F.2d at 915-16.

As the opinion for the majority correctly notes, this case is

controlled by our decision in In re Executive Office of the

President, 215 F.3d 20 (D.C. Cir. 2000). The Government

cannot find a way around that precedent. Thus, there is

absolutely no basis for our interlocutory review of the District

Court’s discovery orders, either under the collateral order

doctrine or on a petition for mandamus, where the Govern-

ment has asserted no privilege and has failed to specify any

objections to the discovery orders. If, on remand, the Dis-

trict Court fails to tailor discovery pursuant to valid objec-

tions or assertions of privilege by the Government, then there

may be a basis for appellate review. We are far from that

point at this juncture of this litigation, however. Therefore,

this appeal should be dismissed, because we have no jurisdic-

tion to consider it.

I respectfully disagree with the dissent’s argument that we

should instead dismiss plaintiffs’ case because the District

Court lacks mandamus jurisdiction over plaintiffs’ claim. As

the dissent correctly acknowledges, AAPS is the law of this

circuit, and we are bound by it, as is the District Court.

Under AAPS, plaintiffs clearly had a basis for seeking relief

in the District Court ordering the Government to comply with

FACA. The dissenting opinion cites a General Services

Administration (‘‘GSA’’) regulation, 41 C.F.R. 101-6.1003

(2000), to suggest that the ‘‘de facto member doctrine’’ of

AAPS is misguided. This argument might be tenable if the

court in AAPS was obliged to give deference to GSA’s

interpretation of FACA. But the Supreme Court in Public

5

Citizen v. U.S. DOJ, 491 U.S. 440, 465 n.12 (1989), made it

clear that any ‘‘assertion that GSA’s interpretation of FACA’s

provisions is ‘binding’ confuses wish with reality.’’ In any

event, the cited GSA regulation surely does not take prece-

dence over the law of this circuit on the matter here at issue.

Under AAPS’ ‘‘de facto member doctrine’’ – which is indisput-

ably the law of the circuit – plaintiffs have a legal basis for

seeking mandamus relief and the District Court in turn has

mandamus jurisdiction over the claim.

Finally, most of the arguments raised in the dissenting

opinion have never been presented to the District Court and

they were not raised for consideration in the Government’s

brief to this court or in the oral argument before this court.

In other words, the dissent’s position rests on a view of

FACA that has never been urged by the Government. ‘‘Cer-

tainly there are circumstances in which a federal appellate

court is justified in resolving an issue not passed on below, as

where the proper resolution is beyond any doubt, or where

‘injustice might otherwise result.’ Suffice it to say that this is

not such a case.’’ Singleton v. Wulff, 428 U.S. 106, 121 (1976)

(citations omitted). The reason that a federal appellate court

normally does not consider an issue not passed upon below is

because parties, such as plaintiffs in this case, ‘‘should have

the opportunity to present whatever legal arguments [they]

may have in defense of the statute.’’ Id. at 120. The

dissent’s theory of this case has not been propounded by the

Government; it runs counter to the law of the circuit; and it

relies on GSA regulations that the Supreme Court has said do

not carry the force of law. In these circumstances, I can see

no reasonable basis for this court to act sua sponte on a

theory that has been neither raised by the parties nor ad-

dressed by the District Court.

For the foregoing reasons, I concur in the opinion for the

majority.

1

RANDOLPH, Circuit Judge, dissenting: My disagreement

with the majority is about not only its logic but also its

starting points, one of the most prominent of which is derived

from Ass’n of American Physicians & Surgeons, Inc. v.

Clinton, 997 F.2d 898 (D.C. Cir. 1993) (AAPS). There is a

serious constitutional problem in AAPS’s interpretation of the

Federal Advisory Committee Act (FACA), 5 U.S.C. App. § 1

et seq. – a problem this case exposes. As applied to commit-

tees the President establishes to give him advice, FACA has

for many years teetered on the edge of constitutionality. See

Jay S. Bybee, Advising the President: Separation of Powers

and the Federal Advisory Committee Act, 104 YALE L.J. 51

(1994). The decision in this case pushes it over.

The case comes to us in a peculiar posture. We have

mandamus on top of mandamus. Both sides have invoked the

All Writs Act, 28 U.S.C. § 1361. The federal officers have

petitioned this court for a writ of mandamus barring discov-

ery. In the district court, plaintiffs sought a writ of manda-

mus ordering the federal officers to comply with FACA.1

Mandamus, the majority tells us, is ‘‘drastic’’; it is available

only in ‘‘extraordinary situations’’; it is hardly ever granted;

those invoking the court’s mandamus jurisdiction must have a

‘‘clear and indisputable’’ right to relief. These words are

directed at the federal officers’ petition in this court, but they

apply equally to plaintiffs’ suits in the district court. See

1 Mandamus was the only basis upon which the actions could have

proceeded in the district court. All agree that FACA does not itself

create a cause of action. It is also clear that the Administrative

Procedure Act, which plaintiffs invoked, does not apply. The

alleged FACA ‘‘advisory committee’’ here was not an ‘‘agency’’

within the meaning of the APA. See Meyer v. Bush, 981 F. 2d

1288, 1297–98 (D.C. Cir. 1993). It was part of the Executive Office

of the President. The President is not subject to the APA, and

neither are units within the Executive Office whose sole function is

to advise the President. See Franklin v. Massachusetts, 505 U.S.

788, 801 (1992); Kissinger v. Reporters Committee for Freedom of

the Press, 445 U.S. 136, 156 (1980).

Why the majority analyzes (maj. op. at 10) the adequacy of the

administrative record in terms of the APA is therefore a mystery.

Stranger still is the majority’s insistence that there even must be an

administrative record. See supra pp. 9–10.

2

Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002). In my

view, the federal officers have a clear right to relief in the

court of appeals because the plaintiffs do not have a clear

right to relief in the district court. I would therefore grant

the writ and order the district court not only to bar discovery

but to dismiss the actions.

‘‘The President TTT may require the Opinion, in writing, of

the principal Officer in each of the executive Departments,

upon any Subject relating to the Duties of their respective

OfficesTTTT’’ U.S. CONST. art. II, § 2, cl. 1.

In January 2001 President Bush sought advice on energy

policy. To that end, he established, in the Executive Office of

the President, the National Energy Policy Development

Group. The President named to this task force the Vice

President; the Secretaries of Treasury, Interior, Agriculture,

Commerce, Transportation, and Energy; the Director of the

Federal Emergency Management Agency; the Administrator

of the Environment Protection Agency; and three Assistants

to the President. The President authorized the Vice Presi-

dent to invite ‘‘as appropriate, other officers of the Federal

Government.’’ The Group’s mission was to ‘‘develop a nation-

al energy policy designed to help the private sector’’ and

State and local governments, ‘‘to gather information, deliber-

ate, and TTT make recommendations to the President.’’ In

May 2001 the Group issued its recommendations to the

President. The Group’s final report listed, as its members,

the officials the President appointed in his January directive

plus the Secretary of State and the Director of the Office of

Management and Budget. See NATIONAL ENERGY POLICY DE-

VELOPMENT GROUP, NATIONAL ENERGY POLICY: REPORT OF THE

NATIONAL ENERGY POLICY DEVELOPMENT GROUP (2001), avail-

able at http://www.whitehouse.gov/energy/National-Energy-

Policy.pdf.

If the President’s Energy Policy Group were an ‘‘an adviso-

ry committee’’ within the meaning of FACA, the President

was required to make its membership ‘‘fairly balanced.’’ 5

U.S.C. App. § 5(b)(2). If FACA applied, the Group should

have filed a detailed ‘‘charter’’ with the General Services

3

Administration (GSA) before the Group began operating. Id.

§ 9(c). It should have held its meetings open to the public

and allowed interested persons to file comments. Id.

§ 10(a)(1). It should have given notice of its meetings in the

Federal Register. Id. § 10(a)(2). It should have kept de-

tailed minutes of each meeting and ‘‘a complete and accurate

description of matters discussed and conclusions reached.’’

Id. § 10(c). And it should have made available to the public

its ‘‘records, reports, transcripts, minutes, appendixes, work-

ing papers, drafts, studies, agenda’’ and other documents. Id.

§ 10(b).

There is no doubt that these requirements would violate

the separation of powers if they were imposed on all groups

formed by the President for the purpose of providing him

advice. See Bybee, supra. And so FACA contains an ex-

emption for committees ‘‘established or utilized’’ by the Presi-

dent when the committees are ‘‘composed wholly of full-time

TTT officers or employees of the Federal Government.’’ 5

U.S.C. App. § 3(2). On the face of it, the Energy Policy

Group, consisting only of high-level federal officials, was thus

exempt from FACA.

But plaintiffs, relying on AAPS, alleged that the Group

nevertheless was a FACA advisory committee. AAPS held

that an outside consultant may ‘‘be properly described as a

member of an advisory committee if his involvement and role

are functionally indistinguishable from those of the other

members,’’ thus rendering the entire committee subject to

FACA. 997 F.2d at 915. It is far from clear where the

AAPS court derived its holding. No section of FACA was

cited. The opinion purports to be interpreting the word

‘‘member,’’ but the operative provision – quoted in the preced-

ing paragraph – does not use that word. The AAPS court

knew that an inquiry into functional equivalency would be

fact-bound, and so it authorized discovery. Id. at 915–16.

It is this holding in AAPS that enabled plaintiffs – through

allegations that private citizens were de facto members of the

Energy Policy Group – to avoid a motion to dismiss, and it is

this holding that led directly to the discovery order we have

4

before us. Judicial Watch’s complaint names four private

individuals and alleges that they ‘‘regularly attended and fully

participated in non-public meeting of the [Energy Policy

Group] as if they were members.’’ Judicial Watch Compl. at

8–9. The Sierra Club’s complaint is more general: it alleges

that ‘‘[e]nergy industry executives, including multiple repre-

sentatives of single energy companies, and other non-federal

employees, attended meetings and participated in the activi-

ties of the Cheney Energy Task Force and Task Force Sub–

Groups.’’ Sierra Club Compl. at 6. The allegations are on

information and belief.

Given AAPS’s formulation, extensive discovery into the

Executive Office of the President is inevitable. Functional

equivalency, as AAPS contemplated, invites a comparative

judgment. One cannot know whether a private individual

acted like a member of a Presidential committee unless one

knows how the members acted. And so plaintiffs proposed,

and the district court approved, free range discovery: inter-

rogatories asking for descriptions of all the activities of all

individuals – members and staff alike – who were involved in

the work of the Energy Policy Group, and requests for

documents detailing all communications between those work-

ing for the Group and their governmental departments with

persons who were not full-time federal employees. The

approved discovery plan also contemplates depositions.

My colleagues are confident that the district court can

reign in the discovery, but I cannot see how this can be done

in any non-arbitrary way. The AAPS opinion provides no

standards. And my colleagues never articulate their concep-

tion of de facto membership. Left open is an extensive area

to be explored in depositions, interrogatories, and document

production. Consider just a few of the possibilities. Suppose

it turns out that a private individual attended 6 of the Group’s

12 meetings. Would that make him a de facto member?

Would it matter if discovery revealed that some of the

members the President appointed attended the same number

of, or even fewer, meetings? What if the private individual

attended all meetings but did not speak, or was present only

for a short period each time? Would it matter whether the

5

private individual had a place at the table or sat on the side

with the Group’s staff? Or whether the private individual

attended only a few meetings, but was quite influential in the

formulation of the final recommendations? Should there be

discovery into what impact the person’s presence or state-

ments had on the other members, and how would that

discovery proceed? Suppose the private individual submitted

memoranda or other documents. Is there to be discovery for

the purpose of determining whether the other members of

the Group took those documents into account in performing

their information gathering function or in formulating their

view of energy policy? (One of the complaints alleges that a

corporate CEO handed the Vice President a three-page mem-

orandum on the subject of energy.) Would it be of any

consequence that the private person met individually with

some of the members the President appointed? (There are

also allegations to this effect.) And if so, is there to be

discovery of who said what, and how this affected the work of

the Group?

These problems and others are a direct result of AAPS and

its lack of any principled standard for determining who is and

who is not a de facto member of a Presidential committee.

For the judiciary to permit this sort of discovery, authorized

in the name of enforcing FACA – a statute providing no right

of action, see supra note 1 – strikes me as a violation of the

separation of powers. The intrusion into the inner workings

of the Presidency, the disruption this intrusion is bound to

entail, the probing of the mental processes of high-level

Cabinet officers inherent in the type of discovery that AAPS

sanctions, the deleterious impact on the advice the President

needs to perform his constitutional duties – all this and more

present ‘‘formidable constitutional difficulties,’’ as the Su-

preme Court acknowledged in Public Citizen v. Department

of Justice, 491 U.S. 440, 466 (1989); see also id. at 488

(Kennedy, J., joined by the Chief Justice and O’Connor, J.,

concurring in the judgment). In fact, I believe the ‘‘constitu-

tional difficulties’’ here are even more ‘‘formidable’’ than they

were in Public Citizen. Even outside the Executive Office of

the President, courts do not allow this sort of discovery into

6

the internal workings of government departments without

‘‘strong preliminary showings of bad faith.’’ Nat’l Nutrition-

al Foods Ass’n v. FDA, 491 F.2d 1141, 1145 (2d Cir. 1974)

(Friendly, J.). As we held in Checkosky v. SEC, 23 F.3d 452,

454, 489 (D.C. Cir. 1994) (opinion of Randolph, J.), unless

there has been such a showing – here there was none –

‘‘agency deliberations, like judicial deliberations, are for simi-

lar reasons privileged from discovery,’’ as are intra-agency

memoranda and other documents recording how and why

decisions or recommendations have been reached. ‘‘Requir-

ing an agency to produce such internal materials and allowing

litigants to depose agency officials TTT would be warranted

only in the rarest of cases.’’ Id.2

The majority and concurring opinions, citing Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419

(1971), insist that discovery is permissible here because the

‘‘administrative record’’ is inadequate. Those who forget the

reason for a rule are apt to misapply it. I can think of no

better illustration than what has occurred here. My col-

leagues have entirely ignored why the Supreme Court said it

might be necessary to take testimony: the administrative

record in Overton Park was not before the Court, and the

administrative officials had not explained their action. This

created a gap, a gap that needed filling because § 706 of the

Administrative Procedure Act, 5 U.S.C. § 706, required the

reviewing court to consider ‘‘the whole record’’ in determining

whether the agency action was supported by substantial

evidence. 401 U.S. at 419–20.3 But in this case there is no

2 None of the material sought in discovery here would be avail-

able through the Freedom of Information Act (FOIA). The Su-

preme Court held in Kissinger v. Reporters Committee for Freedom

of the Press that FOIA 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.’’ 445 U.S. 136, 156 (1980)

(internal quotation marks omitted).

3‘‘Even on those rare occasions when [discovery pursuant to

Overton Park] is appropriate, the district court is not engaged in

ordinary fact-finding, but instead is filling in gaps in the record to

7

gap in an administrative record. The Energy Policy Group

was not an administrative agency; it was not required to

make findings of fact and conclusions of law in order to

enable judicial review under the APA; and the officials the

President named to the group were not agency officials within

the meaning of the APA. See supra note 1. Neither the

district court nor this court would conduct judicial review

under § 706 of the APA, yet that was the source of the

Overton Park holding on which the majority relies.4 See

supra note 1. To state what remains of the majority’s

rationale is to refute it: because Presidential committees are

not APA agencies there is no administrative record; there-

fore there must be discovery to compile an administrative

record adequate for judicial review under the APA even

though the APA does not apply and even though there will be

no such judicial review.

The majority also maintains that there is no ‘‘harm’’ to the

Presidency, that if discovery probes too extensively, all the

federal officials need do is assert executive privilege or any

other privilege that might be available. Maj. op. at 11–12.

The unstated premise of the majority’s view is that the only

potential harm would be in the revelation of privileged mate-

rial and that the federal officers are fully capable of making

sure this does not occur. If this were an adequate answer,

department heads and agency officials would regularly be

subject to discovery; they too could protect themselves by

asserting privileges.

determine what the agency actually did.’’ Marshall County Health

Care Auth. v. Shalala, 988 F. 2d 1221, 1227 (D.C. Cir. 1993).

4 Even in APA cases, ‘‘if the reviewing court simply cannot

evaluate the challenged agency action on the basis of the record

before it, the proper course, except in rare circumstances, is to

remand to the agency for additional investigation or explanation.

The reviewing court is not generally empowered to conduct a de

novo inquiry into the matter being reviewed and to reach its own

conclusions based on such an inquiry’’ – which is precisely what the

majority has allowed the district court to do. Fla. Power & Light

Co. v. Lorion, 470 U.S. 729, 744 (1985).

8

The majority’s no-harm proposition is especially ill founded

in this case. The Energy Policy Group was part of the

Executive Office of the President. If executive privilege is to

be asserted, it therefore appears that the President must

make the decision. ‘‘There must be a formal claim of privi-

lege, lodged by the head of the department which has control

over the matter, after actual personal consideration by that

officer.’’ United States v. Reynolds, 345 U.S. 1, 7–8 (1953)

(footnotes omitted); see In re Sealed Case, 121 F. 3d 729, 744

n.16 (D.C. Cir. 1997). Already the government has voluntari-

ly produced some 36,000 pages of documents in this matter.

How many additional documents are potentially subject to

discovery we do not know. But it is obvious that decisions to

assert privileges must be made document by document and

often line by line. With respect to interrogatories and depo-

sitions, the decisions about privilege must be made question

by question. Each such assertion will trigger yet another

round of proceedings in the district court, unless the plaintiffs

acquiesce in the President’s judgment. In all of this the

President will be distracted and diverted from the perfor-

mance of his constitutional duties and responsibilities. The

Supreme Court recognized as much in Nixon v. Fitzgerald,

457 U.S. 731, 751 (1982): ‘‘Because of the singular importance

of the President’s duties, diversion of his energies by concern

with private lawsuits would raise unique risks to the effective

functioning of government.’’ See also Clinton v. Jones, 520

U.S. 681, 694 n.19 (1997) (reiterating that the President

generally should not be burdened with suits challenging his

official conduct).

If Congress, in order to ensure that outsiders did not have

‘‘undue influence,’’ had passed a law requiring all groups

within the Executive Office of the President to disclose

publicly not only their advice to the President but also all

their records, I am confident the law would be struck down as

a violation of the separation of powers. My confidence in the

unconstitutionality of such a law is not lessened by the

prospect that the President might resist some disclosure by

invoking executive privilege. See Public Citizen, 491 U.S. at

488–89 (Kennedy, J., concurring in the judgment). Discovery

9

on the basis of allegations of de facto membership cannot be

distinguished from such a law. Any Presidential committee

that consults anyone outside of government, or is suspected to

have done so, is potentially subject to discovery into its inner

workings. All a plaintiff has to do is bring a mandamus

action and allege that private individuals had some ill-defined

role in a committee of federal officers advising the President.

And according to the majority opinion, the court of appeals is

powerless to prevent this.

Although more could be said, I will not dwell further on the

constitutional problems raised by today’s decision. I believe

those problems may be avoided on the basis of a regulation

apparently not brought to the court’s attention in AAPS – a

regulation that is contrary to the de facto member doctrine.

Once that doctrine is cast aside, as it surely must be, see

McCreary v. Offner, 172 F.3d 76, 81 (D.C. Cir. 1999), it

becomes apparent that the district court did not have jurisdic-

tion and that the complaints must be dismissed.5

At the time the President formed the Energy Policy Group

and during the time plaintiffs allege non-federal personnel

attended its meetings, a GSA regulation defined ‘‘committee

member’’ to mean ‘‘an individual who serves by appointment

on a committee and has the full right and obligation to

participate in the activities of the committee, including voting

on committee recommendations.’’ 41 C.F.R. § 101–6.1003

(2000).6 As in AAPS, the defendants in this case did not

5 Contrary to the implication of the majority, the federal officers

have repeatedly argued before the district court and this court that

the discovery, as permitted by AAPS, violates the separation of

powers. See, e.g., Emergency Pet. For Writ of Mandamus at 14–15;

Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 219 F.

Supp. 2d 20, 46 (D.D.C. 2002). The problem here is not that the

defendants failed to make the arguments. The problem is that the

majority failed to answer them.

6 On August 20, 2001, the General Services Administration rede-

fined ‘‘committee member’’ to mean ‘‘an individual who serves by

appointment or invitation on an advisory committee or subcommit-

tee.’’ Federal Advisory Committee Management, 66 Fed. Reg.

10

mention the regulation in their briefs or at oral argument.

Nevertheless we must deal with it, for two reasons.

First, the regulation affects the mandamus jurisdiction of

the district court. See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 95 (1998). Plaintiffs have not alleged that any of

the private individuals they have in mind ever ‘‘serve[d] by

appointment’’ to the Energy Policy Group. They have not

alleged, in terms of the regulation, that any of these individu-

als had an ‘‘obligation’’ to serve on the Group or that any of

them had the right to vote on matters coming before it.7 As I

wrote in the beginning of this opinion, in mandamus it must

appear on the face of the pleadings that the plaintiffs have a

‘‘clear’’ right to relief. See Power v. Barnhart, 292 F.3d at

784; see also Ahmed v. Dep’t of Homeland Sec., 328 F.3d 383,

386–87 (7th Cir. 2003). In the absence of any allegations

satisfying the regulatory definition of ‘‘member,’’ plaintiffs

had no clear right to relief and the district court therefore did

not have jurisdiction.

The other reason is that relying on the regulation rather

than the de facto member doctrine of AAPS avoids the

constitutional difficulties this sort of FACA litigation poses,

much in the same way the Supreme Court avoided those

difficulties in Public Citizen, 491 U.S. at 466–67. See Mere-

dith Corp. v. FCC, 809 F.2d 863, 872 (D.C. Cir. 1987).8

37,728, at 37,734 (July 19, 2001) (codified at 41 C.F.R. § 102–3.25).

FACA does not authorize retroactive rulemaking, and there is no

indication that this regulation was meant to be retroactive. See

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).

7 If the regulation controls and if plaintiffs had made these

allegations, it would have been a simple matter to determine

whether evidence supported the claims. Wide ranging discovery of

the sort approved here would be unnecessary and improper. For

instance, only the President, and through his directive, the Vice

President, had the authority to appoint members to the Group, and

even then the authority was limited to full-time government employ-

ees.

8The majority contends that the court is bound by AAPS to

permit discovery to determine de facto membership. Maj op. at 16–

11

The validity of GSA’s definition of ‘‘member’’ cannot be

doubted. GSA is ‘‘the agency responsible for administering

FACA.’’ Public Citizen, 491 U.S. at 463 n.12. It is charged,

in § 7(c) with the duty ‘‘to prescribe administrative guide-

lines,’’ which § 8(a) refers to as ‘‘directives.’’ And under

§ 4(a), regulations GSA promulgates under FACA ‘‘shall

apply to each advisory committee.’’ I recognize that the

Court in Public Citizen gave ‘‘diminished deference’’ to anoth-

er GSA regulation implementing FACA, without mentioning

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 843 (1984).9 But even if GSA’s regulation is not

entitled to Chevron deference, and should receive only what-

ever deference is due under Skidmore,10 I would apply the

regulation to this case in light of the problems of adhering to

the de facto member doctrine of AAPS. Cf. University of

Great Falls v. NLRB, 278 F.3d 1335, 1340–41 (D.C. Cir.

2002). The regulation has the added advantage of enabling

the President, at the time of formation of his committee, to

determine whether the committee must comply with the

many requirements FACA imposes. The de facto member-

ship doctrine, in contrast, will almost invariably require an

after-the-fact determination, contemplating as it does an ex-

18; see also concurring op. at 4–5. However, AAPS did not

consider the GSA regulation, nor did it address the constitutional

issues presented by authorizing discovery. Accordingly, AAPS’s

holding does not preclude the court from considering these points.

See Hagans v. Lavine, 415 U.S. 528, 533 n.5 (1974); United States v

L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37–38 (1952); see also

Legal Services Corp. v. Velazquez, 531 U.S. 533, 557 (2001) (Scalia,

J., dissenting).

9 491 U.S. at 463 n.12. The Court gave several reasons, among

which were that the regulation was not a ‘‘contemporaneous con-

struction’’ of FACA because it was not promulgated until years

after the statute came into effect, and that GSA’s regulations did

‘‘carry the force of law.’’ Id. See generally Thomas W. Merrill &

Kathryn Tongue Watts, Agency Rules with the Force of Law: The

Original Convention, 116 HARV. L. REV. 467 (2002).

10 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

12

amination of what role a private individual played throughout

the committee’s life.

In short, I would issue the writ of mandamus and send the

case back to the district court with instructions to dismiss the

complaints.