Amicus Curiae Brief — Cheney v. United States Dist. Court for DC

———_

i, MAR 1 1 2004

No. 03-475

IN THE

Supreme Court of the United States

RICHARD B. CHENEY,

Vice President of the United States, er a/..

Petitioners,

v

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA, er ai.,

Respondents.

On Writ oF CERTIORARI TO THE

Unitep States Court OF APPEALS

FOR THE District of Co_umsBia CIRCUIT

BRIEF OF AMICUS CURIAE NATURAL RESOURCES

DEFENSE COUNCIL IN SUPPORT OF RESPONDENTS

SHARON BUCCINO Eric R. GLITZENSTEIN

NATURAL RESOURCES Counsel of Record

Derense COUNCIL HowarbD M. CrysTAL

Suite 400 MEYER & GLITZENSTEIN

1200 New York Ave., N.W. Suite 700

Washington, D.C. 20005 1601 Connecticut Ave., N.W.

Washington, D.C. 20009

(202) 588-5206

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............

SUMMARY OF ARGUMENT .................

CE ee ee ee ee er ee

I.

Il.

III.

PETITIONERS HAVE PRESENTED

A SERIOUSLY DISTORTED VIEW OF

FACA’S REQUIREMENTS .............

LIMITED DISCOVERY HAS FREQUENTLY

BEEN AUTHORIZED BY COURTS IN

RESOLVING FACA CASES, AND SUCH

DISCOVERY IS ESPECIALLY IMPORTANT

ES ¢oébekdeneadcseceadsunes

A. The Discovery Authorized Here Is Not

“Tantamount To Relief” For A Violation

SE vevunuddnyseeie oud nendees

B. Courts Have Frequently Authorized

Discovery In FACA Cases, Rather Than

Simply Defer to the Executive Branch’s

Position As To Which Entities Are Subject

i cideciceeecedbavewee

PETITIONERS’ ARGUMENT THAT FACA

CANNOT BE APPLIED TO THE NEPDG

WITHOUT VIOLATING THE SEPARATION

OF POWERS IS PREMATURE, AND

BASED ON A MISREADING OF THIS

COURT'S PRECEDENTS .......ce0000.

EY Sci psbeedesdvcdieervessecenees

16

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Animal Legal Defense Fund v. Shalala,

104 F.3d 424 (D.C. Cir. 1997) ............... 9-10

Association of American Physicians

and Surgeons v. Clinton,

997 F.26 O96 (D.C. Cis. IFRS) .cccccsceseceun passim

Citizens to Preserve Overton Park v. Volpe,

461 U.S. 462 (1979) ...cccnccesseuuenneee 18

Clinton v. Jones,

$20 U.S. 661 (IGS7) ...cccnsscseseee nee 3, 15, 17

Common Cause v. NRC,

674 F.26 921 (D.C. Cie. 1GRZD ..ccccceseeeuee 29

Conley v. Gibson,

35S U.S. 41 (1987)... ccuceecceuue eee 19

Cummock vy. Gore,

180 F.3d 282 (D.C. Cir. 1999) ............... 18

Food Chemical News v. Young,

900 F.2d 328 (D.C. Cir. 1990) ............... 26

Marbury v. Madison,

$ U.S. (1 Cranch) 137 (1GGS) .. «csscessaueues 16

Morrison v. Olson,

467 U.S. 666 (19GB) ..occceccscueeuneee 29

iil

Cited Authorities

NRDC vy. Abraham,

223 F. Supp. 2d 162 (D.D.C. 2002) ...........

NRDC v. Curtis,

189 F.R.D. 4(D.D.C. 1999) ...............5..

NRDC v. Department of Energy,

191 F. Supp. 2d 41 (D.D.C. 2002) ............

NRDC vy. Department of Energy,

ee

NRDC vy. Pena,

147 F.3d 1012 (D.C. Cir. 1998) ..............

Nader v. Baroody,

396 F. Supp. 1231 (D.D.C. 1975) ............

National Anti-Hunger Coalition

v. Executive Committee of the Presidents Private

Sector Survey on Cost Control,

557 F. Supp. 524 (D.D.C.), aff'd, 711 F.2d 1071

Eee cece keeenececcccces:

National Anti-Hunger Coalition

v. Executive Committee of the Presidents Private

Sector Survey on Cost Control,

566 F. Supp. 1515 (D.D.C. 1983) ........... 7

Nixon v. General Services Administration,

ED sccencccescccececs 4, 28,

Public Citizen v. Department of Justice,

Page

18

18

29, 30

TE, cccneeccceccccececes: 24-25, 26

iv

Cited Authorities

Page

Public Citizen v. National Advisory Committee on

Microbiological Criteria for Foods,

886 F.2d 419 (D.C. Cir. 1989) ............4.. 5

{

Swierkiewicz v. Sorema N.A.,

og! Ef POT eT TT eee 19

Washington Legal Foundation

v. United States Department of Justice,

691 F. Supp. 483 (D.D.C. 1988) ............. 26

Washington Legal Foundation

v. United States Sentencing Commission,

17 F.3d 1446 (D.C. Cir. 1994) ............... 26

Youngstown Sheet & Tube Co. v. Sawyer,

See es SPIED 4. bb cadadoueasccabeneses 17

Constitution, statutes and regulations:

a GR. AOE. TE OS ce ceccccsecvescecescess passim

es Sa GD ecevedececeeudacsuceces 28

Federal Advisory Committee Act, 5 U.S.C. App. 2 .. passim

Dee MA. BS OAD bc cc ccc ceccdtowccscsss 5

Ds A Be ED occ cceeneccenndvins 5

DU ED wun evecswotnenseesse 3, 11, 22

DU BO SEED cv ccckccesviseucccces 7,25

i Ee ee

v

Cited Authorities

Page

Pe A OD 6 vconceveccecdnuseseceus 7, 25

Pe ED bende gnecvavcewseddevenaie 22, 23

Pe Oe SE puscucececccecentees 6

PE BOOED ecccccccndessscceevens 3, 9, 10

PA Fe EE owescevccccesessseesces 6

Freedom of Information Act, 5 U.S.C. § 552 ..... passim

PIED Sedeneuescceseseeneeneses 6

Presidential Records Act of 1978, 44 U.S.C. § 2201

TTT TTT TTT TTT TTT TTT TTT eTOCs 6

Sunshine Act, 5 U.S.C. § 552b ................. 6

Ps ED sadeentccedavesccaueunees 6

Executive Order 11,686 (1972) ................ 6

Executive Order 13,212 (2001) ................ 30

Legislative History:

Congressional Research Service, Federal Advisory

Committee Act Source Book: Legislative History,

Texts, and Other Documents, 95th Cong., 2d Sess.

eee ee 5

H. Rep. No. 1017, 92d Cong., 2d Sess. (1972) ....

JUchensdgeauneeavedsedueseeeesenss us 5, 24, 25, 30

l

INTEREST OF THE AMICUS CURIAE'

The Natural Resources Defense Council (“NRDC”) is a

non-profit organization with over 400,000 members dedicated

to the protection of the environment. NRDC engages in

extensive advocacy and public education with regard to the

development of environmentally sound energy policies. NRDC

~— which filed an extensive amicus brief and participated in oral

argument in the district court, see Pet. App. 60a-61a; see also

id. at 74a, 117a (relying on arguments advanced by NRDC in

denying motion to dismiss) — has two significant, interrelated

interests in this case.

First, NRDC has an institutional interest in the proper

implementation and interpretation of the Federal Advisory

Committee Act, 5 U.S.C. App. 2 (“FACA”). The federal

government regularly relies on advisory committees for a host

of environmental, scientific, and public health-related issues

that are of central concern to NRDC and its members, and thus

the organization has a substantial interest in ensuring that the

federal government properly carries out its responsibilities under

the statute. As an outgrowth of that interest NRDC has engaged

in extensive litigation under FACA. See, e.g., NRDC v. Dept of

Energy, 353 F.3d 40 (D.C. Cir. 2004); NRDC v. Pena, 147 F.3d

1012 (D.C. Cir. 1998).

Second, NRDC has a significant organizational interest

in obtaining the kind of information sought by the respondents

in this case — i.e., details concerning the National Energy

Policy Development Group (“NEPDG”), and how the

recommendations of the NEPDG and its subgroups were

developed. As a result of litigation brought by NRDC against

the Department of Energy (“DOE”) under the Freedom of

Information Act, 5 U.S.C. § 552 (“FOIA”), DOE was ordered

1. None of the attorneys for the parties in this case authored any

of this amicus brief, and no one other than NRDC made any monetary

contribution to the preparation or submission of this brief. Amicus has

received the written consent of the parties to file this brief, and these

consents are being lodged with this brief.

2

to release records that provided the public with some

understanding of the workings of the NEPDG, although DOE

‘continues to withhold most of these documents from public

scrutiny. See NRDC v. Dept of Energy, 191 F. Supp. 2d 41

(D.D.C. 2002); see also Brief for the Petitioners (“Pet. Br.”’) at

6. The sweeping separation of powers arguments advanced by

the government in this case may also have a direct bearing on

the public’s rights of access under FOIA, including NRDC’s

pending FOIA case against DOE.’

SUMMARY OF ARGUMENT

I. On separation of powers grounds, petitioners are

asserting a blanket “immunity,” Pet. Br. at 42, from “any

discovery against the Vice President and immediate assistants

to the President,” regardless of the sensitivity or confidentiality

of the particular information sought, or its importance to

plaintiffs’ FACA claims. Jd. at 47 (emphasis in original). This

Court has never previously sustained such a sweeping assertion

of executive power and “immunity” from judicial process — and

for good reason. If accepted, this approach would actually erode,

rather than safeguard, the separation of powers by drastically

curtailing the role of the federal courts in enforcing statutes

passed by Congress.

a. Petitioners’ argument that the lower courts could not have

allowed any discovery to proceed against the Executive Branch

officials and employees most knowledgeable about the workings

of the NEPDG and its subgroups is based on the oft-repeated

premise that the lower courts authorized “discovery at least as

broad and constitutionally problematic as the disclosure

requirements imposed by FACA itself.” Pet. Br. at 9. This

unsupported assumption, however, has no basis in legal reality,

since there is no necessary or even logical relationship between

FACA’s “disclosure requirements” and the discovery actually

authorized by the lower courts.

2. NRDC agrees with the jurisdictional arguments that have been

raised by respondents. If, however, the Court addresses the merits, this

brief focuses on certain points that are pertinent to any such

consideration.

er cert ee

3

While FACA requires that non-exempt “records, reports,

transcripts, minutes,” and other documents “prepared for or by

each advisory commitee shall be available for public inspection,”

5 U.S.C. App. 2 § 10(b), the Court of Appeals has made clear

that, to pursue their FACA claims, respondents “must discover

only whether non-federal officials participated and, if so, to

what extent.” Pet. App. 17a (emphasis added). Petitioners never

explain how such “narrow, carefully focused discovery,”

Pet. App. 19a, would violate the separation of powers, especially

since the lower courts have stressed that petitioners may object,

on privilege or other grounds, to the disclosure of any particular

information. See J.A. 258, 288.

Most conspicuously, petitioners simply ignore respondents’

claims that subgroups of the NEPDG were subject to FACA,

even if the NEPDG itself was not. See 5 U.S.C. App. 2 § 3(2).

Petitioners suggest no legitimate reason why respondents

should be precluded from discovering information bearing on the

structure and composition of subgroups — information that is

not reflected at all in petitioners’ scant “administrative record.”

Pet. Br. at 26. Indeed, since, as this Court has held, even

“sitting Presidents” may be subject to “to court orders to provide

testimony’ in civil cases, Clinton v. Jones, 520 U.S. 681, 704 (1997),

it is difficult to fathom how the Constitution could be violated

through discovery focused on whether and how non-federal

employees participated in the work of the NEPDG or its subgroups.

b. Petitioners’ contention that the lower courts should have

simply deferred to the government’s representation that the

NEPDG and its subgroups functioned in a manner that exempted

them from FACA, Pet. Br. at 9, also conflicts with basic

principles of judicial review of Executive Branch action,

particularly how such review has been conducted in FACA cases

since that statute’s enactment. As in this case, courts construing

FACA have frequently authorized narrow discovery aimed at

ascertaining whether particular Executive Branch committees

were subject to FACA, and whether specific provisions of the

Act were violated. Such factfinding has helped courts avoid

unnecessary constitutional adjudication.

4

II. Petitioners’ contention that FACA could not

constitutionally be applied to the NEPDG or its subgroups under

any circumstances because this would necessarily “interfere with

core Executive Branch functions,” Pet. Br. at 28, is, in practical

effect, an argument that FACA is unconstitutional on its face,

since virtually every advisory committee could be said to

implicate the Opinion Clause, Recommendations Clause, or

some other constitutional authority vested in the Executive

Branch. Petitioners offer no justification for the Court to even

address this unprecedented position — which, if adopted, would

also call into question the validity of the FOIA and other open

government laws — before the lower courts have even

determined, based on a factual record, whether FACA applies

to the NEPDG or subgroups. In any event, contrary to petitioners’

argument, this Court has employed a pragmatic balancing test

in considering the constitutionality of statutes such as FACA,

see, e.g., Nixon v. General Services Administration, 433 U.S.

425 (1977), and the application of that test would also benefit

from limited discovery, as the lower courts found.

ARGUMENT

I. PETITIONERS HAVE PRESENTED A SERIOUSLY

DISTORTED VIEW OF FACA’S REQUIREMENTS.

Before turning to petitioners’ specific arguments, it is

important to summarize the reasons why Congress enacted

FACA and the modest procedural requirements imposed by the

statute. This summary is especially useful because petitioners’

brief proceeds on the erroneous assumption that FACA’s

application to the NEPDG would necessarily result in “extreme

interference” with the President’s ability to obtain policy advice

or make decisions. Pet. Br. at 35. In fact, however, Congress

did not enact FACA to “interfere” with, or foreclose, the

Executive Branch’s use of advisory committees but, rather,

simply to ensure that such committees would operate in the

public interest.

A fter holding extensive hearings in 1970 and 1971 on the

wr boa |?

5

substantial control over them,” Congress concluded that it was

essential to establish a comprehensive system for regulating this

influential “fifth arm of the government.” Congressional

Research Service, Federal Advisory Committee Act Source

Book: Legislative History, Texts, and Other Documents,

95" Cong., 2d Sess. 293 (Comm. Print 1978) (remarks of Rep.

Monagan) (“FACA Source Book”). Of particular pertinence

here, Congress found that:

[o]ne of the great dangers in the unregulated use of

advisory committees is that special interest groups

may use their membership on such bodies to promote

their private concerns. Testimony received at

hearings before the Legal and Monetary Affairs

Subcommittee pointed out the danger of allowing

special interest groups to exercise undue influence

upon the Government through the dominance of

advisory committees which deal with matters in

which they have vested interests.

H. Rep. No. 1017, 92d Cong., 2d Sess. 6 (1972) (emphasis

added), reprinted in 1972 U.S. Code Cong. & Admin. News

3491, 3496; see also 118 Cong. Rec. 30,276 (1972) (Senate

staff report submitted by Senator Percy) (“‘Viewed in its worst

light, the federal advisory committee can be a convenient nesting

place for special interests seeking to change and preserve a

federal policy for their own ends.””’) (quoted in Public Citizen

v. National Advisory Committee on Microbiological Criteria

for Foods, 886 F.2d 419, 425 (D.C. Cir. 1989) (Friedman, J.,

concurring in the judgment)).

To address these overnding national interests, when FACA

was enacted in 1972, Congress recognized that, while advisory

committees are “frequently a useful and beneficial means of

furnishing expert advice, ideas, and diverse opinions to the

Federal Government . . . [,] standards and uniform procedures

should govern the[ir] establishment, operation, administration

and duration. . . .” 5 U.S.C. App. 2 §§ 2(a), (b)(4). FACA was

6

endorsed the statute’s “standards for the establishment,

operation, termination, and control of advisory committees,”

but also directed that the “heads of all executive departments

and agencies shall take appropriate action to assure their ability

to comply with the provisions of the Act.” Executive Order

11,686 (1972), reprinted in FACA Source Book at 340.

Consistent with the Congressional purposes underlying the

statute, FACA does not regulate the subject matter that advisory

committees may consider, nor does it in any way dictate the

results of their deliberations. Instead, the Act simply establishes

uniform rules governing the procedures and operations of such

committees, and seeks to ensure that they meet basic standards

of public accountability. Many of these standards parallel

provisions found in other open government statutes, such as

FOIA, 5 U.S.C. § 552, the Sunshine Act, 5 U.S.C. § 552b, and

the Presidential Records Act of 1978, 44 U.S.C. § 2201. As is

true with these statutory schemes, the day-to-day implementation

of FACA is assigned to Executive Branch officials.

FACA provides that agencies must generally provide the

public with “timely notice” of committee meetings. 5 U.S.C.

App. 2 § 10(a)(2). However, a committee meeting may be closed

to the public in whole or in part if the agency determines that

matters to be discussed at the meeting fall within one of the ten

exemptions to the Sunshine Acct. /d. at § 10(d); see also 5 U.S.C.

§ 552b(c). Those exemptions apply, e.g., to matters that must

be “kept secret in the interests of national defense or foreign

policy,” “trade secrets and commercial or financial information,”

materials “compiled for law enforcement purposes,” and matters

that would be “likely to significantly frustrate implementation

of a proposed agency action.” /d. Under section 10 of FACA,

the committee must keep minutes of each meeting, see 5 U.S.C.

App. 2 § 10(c), and make the records -- along with any reports,

records, or other documents used or generated by the committee

-- available to the public, provided that they do not fall within

the exemptions to disclosure contained in the FOIA, which also

cover such matters as national security, law enforcement, and

trade cerret material. Id. at § 10(b): see also 5 U.S.C. § 552(b).

-

Under section 5 of FACA, an advisory committee must be

“fairly balanced in terms of the points of view represented and

the functions to be performed.” 5 U.S.C. App. 2 §§ 5(b), (c).

However, courts have determined that the government has very

wide latitude in meeting this requirement by defining the

functions of their committees, as well as the type of

representation that is relevant to the performance of those

functions. See National Anti-Hunger Coalition v. Executive

Committee of the President’ Private Sector Survey on Cost

Control, 557 F. Supp. 524, 530 (D.D.C.), aff'd, 711 F.2d 1071

(D.C. Cir. 1983).

Since 1972, thousands of advisory committees have been

chartered in accordance with FACA and have complied with

the Act’s various requirements, while still furnishing advice and

recommendations to the President and federal agencies.

According to a website maintained by the General Services

Administration, there are presently 947 “active” advisory

committees that are complying with the statute’s provisions,

including 43 “presidentiai” advisory committees that have been

chartered under FACA. See http://www fido. gov/facadatabase.

Examples of such “presidential” committees that are complying

with FACA include the Advisory Panel to Assess Domestic

Response Capabilities for Terrorism Involving Weapons of Mass

Destruction, the Presidential Advisory Council on HIV/AIDS,

and the President’s Commission to Strengthen Social Security.

Id.

Plainly, if thousands of committees, including dozens of

Presidential bodies — many dealing with highly sensitive and

controversial issues — have managed to comply with FACA,

then it is not the case that compliance with the statute nee ssarily

“interferes” with the President’s ability to obtain a)* .<e from

such bodies. In any event, the lower courts here have not even

had the opportunity to determine whether the NEPDG or its

subgroups are the types of entities that should be subject to the

statute. As we discuss next, petitioners’ arguments as to why

the courts should be precluded from even making that

8

determination in light of an appropriate factual record are also

based on a fundamental misunderstanding of FACA and how

the statute has been enforced by the courts.

Il. LIMITED DISCOVERY HAS FREQUENTLY BEEN

AUTHORIZED BY COURTS IN RESOLVING FACA

CASES, AND SUCH DISCOVERY IS ESPECIALLY

IMPORTANT IN THIS CASE.

A. The Discovery Authorized Here Is Not

“Tantamount To Relief” For A Violation of FACA.

Petitioners’ central justification for why this Court should

take the extraordinary step of addressing their sweeping

separation of powers arguments before the lower courts have

even had the opportunity to rule on whether FACA applies here

is that the discovery sought by plaintiffs “raises the same

constitutional concerns as would a final judicial determination

that FACA applies.” Pet. Br. at 18 (emphasis added); id. at 11

(“The discovery that has been ordered raises the same separation-

of-powers problems as the statutorily mandated disclosures that

would follow from a final determination that FACA applied to

the NEPDG.”). This contention, in turn, is based on the repeated

premise that the district court and D.C. Circuit authorized “wide-

ranging discovery” that would be “tantamount to relief for a

proven FACA violation.” Pet. Br. at 9, 47 (emphasis added); see

also id. at 20-21 (“discovery obligations may, as in this case, be

at least as intrusive as the disclosure obligations imposed by

FACA itself”’); id. at 39 (“The outcome of the lawsuits will

largely be beside the point, as the remedy for a proven FACA

violation is not materially different from a discovery order.”’).

Of course, since petitioners did not, before appealing, even

allow the district court to decide what specific discovery would

be allowed, and which of petitioners’ “legitimate objections”

(J.A. 208) to discovery would be sustained, petitioners’ asserted

concerns with “wide-ranging discovery” are, at minimum,

facially premature, and have no basis in any actual ruling made

by the district court or court of appeals. See, e.g., J.A. 208

(statement by district court that “/ recognize that there may be

9

legitimate objections to the [discovery] plan that raise

constitutional concerns and that raise concerns of executive

privilege. If so, we’ll address those objections and concerns at

the appropriate time.”) (emphasis added); J.A. 405 (statement

by district court that “[c]ompliance with this Court’s Orders

will not necessarily result in plaintiffs’ ‘obtaining’ any discovery,

as it is entirely conceivable that defendants could assert specific

viable claims of privilege for every responsive document’’)

(emphasis in original); Pet. App. 22a (statement by court of

appeals that the “narrow discovery we expect the district court

to allow may avoid the need for petitioners even to invoke the

[executive] privilege”).

In any event, the central supposition of petitioners’ brief

that the lower courts have already authorized discovery that is

“tantamount to relief for a proven FACA violation,” Pet. Br. at

47, is unsupported in petitioners’ brief, and is simply wrong.

In reality, there is no necessary, or even logical, relationship

between, on the one hand, what plaintiffs should be entitled to

seek in discovery in order to explore the presence of a FACA

violation, and, on the other hand, the relief to which plaintiffs

may be entitied in the event that the district court and court of

appeals were to ultimately rule that such a violation existed.

To the contrary, it is clear that the “tightly-reined discovery”

authorized by the lower courts, Pet. App. 11 8a, is much narrower,

and very different in kind, from FACA’s actual disclosure

requirements.

Under FACA, subject to any applicable FOLA exemption,

all of the “records, reports, transcripts, minutes, appendixes,

working papers, drafts, studies, agenda, or other documents

which were made available to or prepared for or by each advisory

committee shall be available for public inspection and

copying. . . ."5 U.S.C. App. 2 § 10(b). Consequently, ifthe lower

courts were to find that the NEPDG or its subgroups were subject

to FACA, they could order, as relief for that violation, that non-

exempt materials be made available to respondents and other

members of the public. See, e.g., Animal Legal Defense Fund v.

10

Shalala, 104 F.3d 424, 431 (D.C. Cir. 1997) (“remand[ing] so

that the district court may determine whether there are

documents to which the appellants may obtain access” under

section 10).

In contrast, to explore their claims that the NEPDG or its

subgroups were subject to FACA because they in fact contained

non-federal members, respondents are not entitled, nor were

they the beneficiaries of any discovery order authorizing them,

to receive all of the “records, reports, transcripts, minutes,” and

other materials subject to public disclosure under section 10(b)

of FACA. Rather, as made clear by the court of appeals, the

nature of the dispute between the parties narrowly circumscribes

the kind of discovery respondents need to pursue their claims —

i.e., they “must discover only whether non-federal officials

participated, and if so, to what extent.” Pet. App. 17a (emphasis

added); id. at 18a (respondents “need only documents referring

to the involvement of non-federal officials,” and do not need to

pursue broader document production requests).

Hence, not only is petitioners’ assertion that the appropriate

discovery here is “tantamount” to the relief fora FACA violation

baseless and unsupported, but the “narrow, carefully focused

discovery” authorized by the lower courts (Pet. App. 19a) can

easily be pursued without in any way disclosing the core matters

over which petitioners profess concer. Petitioners maintain that

they are centrally concerned with “the process by which a

President obtains information and advice from the Vice

President, heads of departments and agencies, and assistants

to the President in the exercise of powers committed exclusively

to the President by the Constitution. . . .” Pet. Br. at 12 (emphasis

added).

Cnitically, however, to pursue their claims here, respondents

do not need — and, under the court of appeals’ ruling, will not

be permitted — to obtain discovery reflecting “information and

advice from the Vice President, heads of departments and

agencies, and assistants to the President.” Indeed, such

information regarding the advisory role played by government

—-:-

; ———_-— — _ -—<-—<

ll

officials would not seem to help respondents “establish ». nether

non-federal officials participated, and if so, to what extent.”

Pet. App. 17a (emphasis added).

Conspicuously, while repeatedly raising the specter of

“broad” discovery into the inner workings of the Executive

Branch (which no court has ever authorized in this case),

petitioners never explain why they would suffer any

demonstrable harm from the specific discovery that is actually

pertinent to plaintiffs’ claims — let alone why they need wholesale

“immunity” from such discovery. Pet. Br. at 42. For example,

respondents completely ignore a critical feature of respondents’

claims that is at least partially borne out by the existing record

~ i.e., that there are one or more “subgroups” of the NEPDG

that should be complying with FACA because they have non-

federal members, even if the NEPDG itself did not have to

adhere to the Act. See, e.g., J.A. 146 (allegation in Sierra Club

complaint that petitioners formed “Sub-Groups” that “were not

composed wholly of full-time officers or employees of the

federal government” but, rather, included “{e]nergy industry

executives, including multiple representatives of single energy

companies, and other non-federai employees’”’).’

FACA expressly defines an “advisory committee” as

encompassing “any subcomittee or other subgroup” which is

“established or utilized by the President” or by an agency in

“obtaining advice or recommendations.” 5 U.S.C. App. 2 § 3(2).

Accordingly, if a subgroup of the NEPDG was established or

utilized which contained non-federal members, then that entity

would be subject to FACA even if, as petitioners insist, the

NEPDG itself was only comprised of federal employees. Indeed,

as explained in Ass'n of American Physicians and Surgeons v.

Clinton, 997 F.2d 898 (D.C. Cir. 1993) (“AAPS”) — which

3. The allegation that energy industry representatives participated

in the drafting of the NEPDG recommendations has been supported

by some of the information that has already been disclosed. See, e.g.,

Don Van Natta, “Executive Order Followed Energy Industry

Recommendation, Documents Show,” New York Times, April 4, 2002,

at Al4 (exhibit to district court amicus brief).

12

addressed whether President Clinton’s Task Force on National

Health Care Reform or its “working group” were subject to

FACA ~ if acommittee of advisors is not subject to FACA, and

hence will avoid public scrutiny under the statute, it is especially

critical to evaluate whether subgroups are improperly

circumventing the Act. See id. at 913 (“when the Task Force

itself is considered part of the government — due to the

government officials exemption — we must consider more closely

FACA’s relevance to the working group. For it is the working

group now that is the point of contact between the public and

the government.”’).*

There is nothing in petitioners’ meager “administrative

record” — i.e., the January 29, 2001 Presidential memorandum

establishing the NEPDG - that discusses the structure or

composition of any subgroups or subcommittees employed by

the NEPDG, other than a delegation of authority to the Vice

4. While repeatedly critiquing the “de facto member doctrine”

discussed in AAPS, Pet. Br. at 18, petitioners never fully explain the

context in which the “doctrine” was applied in that case — which, contrary

to petitioners’ suggestion, id. at 17-18, is directly analogous to the

situation here. In AAPS, the D.C. Circuit concluded that the Clinton

Task Force was not subject to FACA due to First Lady Hillary Clinton's

membership on the Task Force, because the “phrase ‘full-time officer or

employee of the government’ could be read to include the First Lady.

997 F.2d at 911. The Court reasoned, however, that its ruling on the

exclusion of the Task Force itself necessitated closer scrutiny of the

“working group” which had been set up to assist the Task Force, and

which was alleged to have included non-federal members. Following a

thoughtful analysis of the kinds of factors that would be pertinent to

assessing whether the working group would be subject to FACA - such

as whether the working group had an “organized structure, a fixed

membership, and a specific purpose” and, if so, the extent of involvement

by non-federal parties, id. at 914-15 — the Court found that “[w]e simply

have insufficient material in the record to determine the character of the

working group and its members.” /d. at 915. Consequently, the Court

concluded that “we believe further proceedings, including expedited

discovery, are necessary before the district court can confidently decide

whether the working group is a FACA committee.” /d. at 915-16. That

reasoning applies squarely to this case as well.

13

President to “establish subordinate working groups to assist the

Energy Policy Development Group in its work.” J.A. 157. Thus,

petitioners’ “administrative record” in no way addresses whether

such “working groups” were, in fact, formed and, if so, whether

they had the kind of structure and function that would subject

them to FACA, see AAPS, 997 F.2d at 915, and whether they

were composed entirely of full-time federal employees.

Consequently, petitioners found it necessary to file, in the

district court, a litigation affidavit purporting to address those

issues, among others. See Declaration of Karen Y. Knutson

(J.A. 235-41). In that affidavit, Ms. Knutson — the Deputy

Assistant to the Vice President for Domestic Policy — states that

the Executive Director of the NEPDG (Andrew Lundquist, a

DOE employee who was “on assignment to the Office of the

Vice President,” J.A. 236) had in fact established at least one

“Working Group” which “held numerous meetings regarding

drafting of the Report.” J.A. 240. Ms. Knudson’s affidavit further

states that “/t/o the best of my knowledge, the only attendees at

such meetings were full-time Federal employees of the

departments, agencies, and offices whose heads constituted,

with the Vice President, the NEPDG,” with the “exception” of

“one individual” who assisted with the “preparation of the

NEPDG Report.” /d. (emphasis added). However, Ms. Knudson

also acknowledges that “/ do not recall how many meetings of

the staff-level group occurred or precisely which employees

attended, nor did the Office of the Vice President to the best of

my knowledge keep records at such meetings that reflect such

information.” /d. (emphasis added).

In short, in a litigation affidavit, petitioners have conceded

that there was at least one subgroup assisting the NEPDG that

had regular meetings, although petitioners’ brief says nothing

whatsoever about that entity or its potential FACA coverage,

nor does the brief address any other subcommittees that may

have been formed by petitioners or federal agencies working

on the NEPDG report, despite the fact that respondents’

complaints specifically seek relief with respect to any NEPDG

14

“sub-groups.” Moreover, while resisting “any discovery” at all

from the Office of the Vice President, Pet. Br. at 47 (emphasis

in original), including information that might shed additional

light on the operations and membership of the Working Group

or other subgroups, petitioners have relied on factual assertions

from an individual who does not even purport to have personal

knowledge of the attendees at all Working Group meetings

but, rather, has made sworn statements “to the best of [her]

knowledge” — without ever even describing the factual basis

for her “knowledge,” or how complete it is. J.A. 241.

Petitioners have completely failed to explain how limited

discovery concerning the operation and membership of

the Working Group or other subgroups — including by exploring

the accuracy of, and basis for, the factual assertions in

Ms. Knudson’s affidavit — entails a separation of powers

violation. For instance, if, despite the “best of [Ms. Knudson’s]

knowledge,” petitioners do have documents reflecting that the

regular “attendees at such meetings” included not only

employees of federal agencies, but also representatives of energy

companies with financial interests in the work of the NEPDG,

those records would certainly be pertinent to plaintiffs’ claims

that the Working Group or other subgroups constituted FACA

committees, even if the NEPDG itself did not. But it is difficult

to understand how the disclosure of that specific information

would “implicate[] important separation-of-powers concerns,”

Pet. Br. at 42 — unless those “concerns” are so much “broader

than and antecedent to any specific future claims of privilege,”

id., that they foreclose even the most pedestrian inquiries into

the activities of the Executive Branch.

By the same token, even if respondents had sought to take

Ms. Knudson’s deposition for the purpose of exploring the

specific assertions in her post hoc affidavit — e.g., to find out

whether she in fact attended all of the Working Group and

NEPDG meetings and, if not, how she knows who did — rather

than simply submit document production requests and

interrogatories, as respondents have done to date, it is equally

ROR... Andina? “= —

15

hard to imagine how that would “violate the[] separation of

powers principles in a most direct way.” Pet. Br. at 32. Indeed,

especially since, as this Court explained in Clinton v. Jones,

520 U.S. 681 (1997), even “sitting Presidents have responded

to court orders to provide testimony and other information

with sufficient frequency that such interactions between the

Judicial and Executive Branches can scarcely be thought a

novelty,” id. at 704 (emphasis added), it seems inconceivable

that simply exploring factual assertions made by a “deputy

assistant” to the Vice President as to whether non-federal

employees attended certain meetings necessarily constitutes

a separation of powers violation. /d. at 702 (“petitioner errs

by presuming that interactions between the Judicial Branch

and the Executive, even quite burdensome interactions,

necessarily rise to the level of constitutionally forbidden

impairment of the Executive’s ability to perform its

constitutionally mandated functions”). Once again, however,

even if petitioners could articulate some legitimate reason

why that, or any other specific discovery, should not take

place, the lower courts have made clear that petitioners will

have every opportunity to do so before disclosure of anything

occurs. See, e.g., J.A. 258 (statement by district court that

“I’m not ordering the defendants to turn over any privileged

documents whatsoever. I’m just telling them to turn over

those documents that aren’t privileged pursuant to the

panoply of discovery rules that are in place’”’).°

5. This example also highlights why petitioners’ reference to the

production of “more than 36,000 pages of documents related to the

NEPDG,” Pet. Br. at 6, is a red herring. The vast majority of those

documents were initially disclosed by DOE and other federal agencies

in FOIA litigation brought by NRDC and Judicial Watch. While those

documents provide some information on the role that the agencies played

in supporting the NEPDG process, they do not shed much light on the

workings of the NEPDG itself or on the Working Group. In fact, in the

FOIA litigation, the government has taken the position that records

(Cont'd)

16

B. Courts Have Frequently Authorized Discovery In

FACA Cases, Rather Than Simply Defer to the

Executive Branch’s Position As To Which Entities

Are Subject To The Statute.

Petitioners’ argument that the “President and the Vice

President are in the best position to know how the NEPDG’s

advisory activities were structured” and whether FACA was

implicated, Pet. Br. at 23 — and hence the district court could

not authorize even limited discovery to develop a factual record

for assessing plaintiffs’ claims — contravenes fundamental

notions of independent judicial review, as well as abundant

precedent authorizing discovery in FACA cases. As a general

matter, by arguing that the lower courts cannot authorize even

carefully circumscribed discovery — subject to petitioners’ claims

of executive, or any other, privilege — petitioners’ position clearly

encroaches on the judiciary’s authority to determine whether

the Executive Branch has obeyed the law.

Defendants’ approach violates the rudimentary principle that

“{iJt is emphatically the province and duty of the judicial

department to say what the law is.” Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803). Thus, as this Court has explained:

we have long held that when the President takes

official action, the Court has the authority to

determine whether he has acted within the law.

Perhaps the most dramatic example of such a case

(Cont'd)

created or obtained by Mr. Lundquist and the other DOE employees,

see J.A. 238 (describing the “five professionals employed by the

Department of Energy who were originally assigned to the Office of the

Vice President” to serve as staff for the NEPDG), are not even “agency

records” subject to the FOIA. See Department of Energy’s June 3, 2002

Reply Memorandum in Support of Motion for Summary Judgment , at

4-9, NRDC v. DOE, Civ. No. 01-2545 (D.D.C.). Consequently, there

has been no disclosure of the core information that respondents need to

pursue their claims, i.e., records reflecting whether non-federal

employees routinely participated in the work of the NEPDG or Working

Group or other subgroups.

17

is our holding that President Truman exceeded his

constitutional authority when he issued an order

directing the Secretary of Commerce to take

possession of and operate most of the Nation’s steel

mills in order to avert a national catastrophe [].

Despite the serious impact of that decision on the

ability of the Executive Branch to accomplish its

assigned mission, and the substantial time that the

President must necessarily have devoted to the

matter as a result of judicial invoWwement, we

exercised our Article III jurisdiction to decide

whether his official conduct conformed to the law.

Clinton v. Jones, 520 U.S. at 703 (emphasis added) (citing

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).

Accordingly, if, as this Court has made plain, in the course of

allowing discovery directly against President Clinton to proceed,

the federal courts have the Article III authority to determine

whether the Executive Branch — including the President himself

— has “acted within the law,” then the courts necessarily have

the requisite authority to allow the factfinding essential to apply

the law, especially where, as here, petitioners never have

coherently explained how discovery tailored to assessing

whether and how non-federal employees participated in the work

of the NEPDG would unduly impinge on Executive Branch

powers.°

6. Indeed, while repeatedly asserting that discovery here “raises

the same separation-of-powers problems” as would a final ruling that

the NEPDG must comply with FACA, Pet. Br. at 11, petitioners have

not explained how the specific Constitutional provisions that they have

invoked are even relevant to the limited discovery authorized by the

lower courts. For example, the Opinion Clause expressly applies only

to the “Opinion, in writing, of the Principal Officer in each of the

executive Departments.” U.S. Const., Art. Il, § 2 (emphasis added).

But the written opinions of the “Principal Officer[s]” who participated

on the NEPDG - i.e., the Cabinet officials who served as members

of the committee — far from being conveyed in confidence to the

President, have not only been disclosed, but broadcast, to the public.

(Cont'd)

18

Petitioners’ corollary contention that the lower courts should

be foreclosed from authorizing “any discovery” against them,

Pet. Br. at 47 (emphasis in original), because of the “presumption

of regularity that applies to all Executive Branch actions,”

id., at 42, conflicts with this Court’s admonition that this

“presumption is not to shield [Executive Branch action] from a

thorough, probing, in-depth review” by the courts. Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971).

This argument also disregards extensive FACA precedent, in

which courts construing and applying FACA have, consistent

with the Federal Rules of Civil Procedure, often authorized

discovery aimed at ascertaining whether particular Executive

Branch committees and materials were subject to the law, as

well as whether particular provisions of the Act were violated,

without requiring that Executive Branch deliberations be

disclosed. See, e.g., AAPS, 997 F.2d at 914 (“We simply cannot

determine how to classify the working groups based on the

record before us.”); Cummock v. Gore, 180 F.3d 282, 293

(D.C. Cir. 1999) (“on remand, the District Court must engage

in the necessary discovery and fact finding to determine whether

any additional materials fall within the parameters to which

Cummock is entitled” under FACA); NRDC v. Pena, 147 F.3d

1012, 1027 (D.C. Cir. 1998) (remanding for plaintiffs to take

discovery against DOE that might support their request for an

injunction against use of an advisory committee report prepared

in violation of FACA); NRDC v. Abraham, 223 F. Supp. 2d

162, 187-89 (D.D.C. 2002) (relying on materials obtained by

plaintiffs in discovery to find that committees established by

DOE were subject to FACA); NRDC v. Curtis, 189 F.R.D. 4, 10

(D.D.C. 1999) (“the discovery sought relates to the general topic

(Cont'd)

See http://www. whitehouse.gov/energy (Task Force report). What is not

known, but what discovery would ascertain, is whether any non-federal

employees participated in the work of the NEPDG or subgroups in a

manner that would subject them to FACA. By its plain terms, the Opinion

Clause does not apply to such information.

19

of possible violations of FACA and evidence disclosing such

violations is relevant”’).

In this case, as in many other FACA disputes, targeted

discovery will assist the lower courts in determining whether

any FACA violation has occurred — with regard to the NEPDG

or the Working Group or any other subgroups — and, if so,

whether relief can be crafted for that violation consistent with

the separation of powers. See Pet. App. 19a (statement by

court of appeals that “if after limited discovery, it turns out

that no non-federal personnel participated as de facto NEPDG

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

constitutional issue lurking in this case”); Pet. App. 117a

(statement by district court that “these questions are better

addressed only after discovery into the activities and

composition of the NEPDG and alleged Sub-Groups.

Contrary to defendants’ argument, it would be inappropriate

for this Court to conduct the fact-intensive inquiry demanded

by separation of powers precedent by considering only the

Presidential Memorandum” ).’

On the other hand, petitioners’ approach — under which the

courts must simply defer to the Executive Branch’s assurances

regarding FACA’s inapplicability, rather than allowing an

independent inquiry into the pertinent facts — plainly puts the

legal cart before the horse, and also runs roughshod over

elementary principles of judicial review. Hence, petitioners assert

7. Petitioners complain that discovery in this case is based on an

“unsupported allegation in a complaint.” Pet. Br. at 9. As this Court has

recently reaffirmed, however, this is how civil litigation generally works.

Under Fed. R. Civ. P. 8(a)(2), a complaint “must simply ‘give the

defendant fair notice of what the plaintiff’s claim is and the grounds

upon which it rests.’ This simplified notice pleading standard relies on

liberal discovery rules and summary judgment motions to define disputed

facts and issues and to dispose of unmeritorious claims.” Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson,

355 U.S. 41, 47 (1957)).

20

that the “de facto member doctrine, particularly as applied in

this case, has no support in FACA’s text,” and that respondents

are seeking a “standardless, amorphous” review of whether

“contacts between government officials and private persons or

entities might render a committee or working group an ‘advisory

committee.’” Pet. Br. at 18 (emphasis added).

In reality, however, neither the “de facto member doctrine,”

nor any other “doctrine,” has even been “applied” by the lower

courts in the resolution of this case on the merits. Rather, those

courts have merely allowed some limited discovery to proceed

— subject, once again, to petitioners’ legitimate privilege claims

and specific objections — so that the courts will have a factual

predicate for determining whether the involvement by private

parties in the work of the NEPDG or Working Group or other

subgroups should subject those entities to FACA’s coverage.

Accordingly, it makes little sense for petitioners to complain

about “standardless, amorphous” judicial review, when it is

defendants’ mid-litigation appeal that has prevented the lower

courts from conducting review armed with a concrete factual

record, and from exploring, based on such a record, what

“standards” should be applied in situations such as this one.

For example, if, as petitioners insist, discovery confirms

that particular private parties did not regularly participate in the

meetings of the NEPDG or Working Group or any other sub-

groups, then the lower courts would, presumably, find that there

was no basis for subjecting these entities to FACA, and no further

judicial inquiry would be necessary or appropriate. As explained

by Judge Silberman in AAPS:

[wJhen an advisory committee of wholly government

officials brings in a ‘consultant’ for a one-time

meeting, FACA is not triggered because the

consultant is not really a member of the advisory

committee. In that situation, the relationship between

the temporary consultant and committee is very

similar to the one between the White House officials

and various private sector representatives exempted

21

from FACA in [Nader v. Baroody, 396 F. Supp. 1231

(D.D.C. 1975)]. We are confident that Congress did

not intend FACA to extend to episodic meetings

between government officials and a consultant.

To do so would achieve the absurd result Public

Citizen warned against: reading FACA to cover every

instance when the President (or an agency)

informally seeks advice from two or more private

citizens.

997 F.2d at 915.

If, however, discovery were to reveal, e.g., that the same

energy industry representatives were permitted to attend and

participate in all of the meetings of the NEPDG or Working

Group, then there would obviously be a strong statutory

argument, in light of FACA’s plain language and purposes,

that one or both of those entities were subject to FACA’s

requirements. Indeed, this was the sensible distinction drawn

in AAPS:

But a consultant may still be properly described as a

member of an advisory committee if his involvement

and role are functionally indistinguishable from

those of other members. Whether they exercise

any supervisory or decisionmaking authority is

irrelevant. If a ‘consultant’ regularly attends and fully

participates in working group meetings as if he were

a ‘member,’ he should be regarded as a member.

Then his status as a private citizen would disqualify

the working group from the section 3(2) exemption

for meetings of full-time government officials.

Id. (emphasis added).

While there is no need or justification to address the merits

at this early phase of the litigation — since the discovery that

respondents take may render the issue moot or, at minimum,

help illuminate it — petitioners never explain why the distinction

drawn in AAPS is not a perfectly sound reading of Congress’s

intent. Contrary to petitioners’ insistence, there is nothing

22

“in FACA’s text,” Pet. Br. at 18, that would foreclose application

of the statute to a situation where the “involvement and role” of

private members are “functionally indistinguishable from those

of other members” of a committee. AAPS, 997 F.2d at 915.

To the contrary, the statute defines an advisory committee

as “any committee” which is “established or utilized by the

President” or an agency “in the interest of obtaining advice or

recommendations for the President or one or more agencies or

officers of the Federal Government,” 5 U.S.C. App. 2 § 3(2),

and it excludes from that definition “any committee that is

composed wholly of full-time, or permanent part-time, officers

or employees of the Federal Government.” /d. at § 3(2)(C)(1)

(emphasis added). Accordingly, the language of the statute

clearly supports the approach adopted in AAPS, since, if a non-

government participant is serving on a committee in a manner

that is “functionally indistinguishable” from other members,

997 F.2d at 915, then, irrespective of whether the government

has acknowledged their participation, the committee is not, in

fact, “composed wholly” of federal “officers or employees.”

On the other hand. petitioners’ reading of the statute makes

no sense. Petitioners argue, circuitously, that the so-called

“de facto member doctrine . . . would effectively repeal both

FACA’s textual exemption for advisory committees made up

exclusively of government officials . . . and its requirement that

the ‘establishment’ of a FACA advisory group must be

‘specifically authorized . . . by the President, 5 U.S.C. App. 2

§ 9(a), at 5.” Pet. Br. at 18. Plainly, however if a private party is

allowed to participate in an advisory committee “as if he were a

‘member,’” AAPS, 997 F.2d at 915, then the committee is not

“made up exclusively of government officials” and the statutory

“exemption” for such committees would be inapplicable. Hence,

an inquiry into the actual — as opposed to declared — membership

of a committee, far from “repealing” the “textual exemption,”

is ameans of honoring the statute’s “text” and underlying intent.

Petitioners’ reliance on section 9(a) of the statute is similarly

unhelpful to their cause. The statutory ban on the establishment

ee —_

23

of any advisory committee “unless such establishment is . . .

specifically authorized by statute or the President,” or is

“determined as a matter of formal record, by the head of the

agency involved .. . to be in the public interest in connection

with the performance of duties imposed on that agency by law,”

5 U.S.C. App. 2 § 9(a), does not, on its face, even remotely

address the question of how “de facto” members of a committee

should be treated. If anything, that provision’s express

“prohibition on unauthorized advisory committees,” Pet. Br. at

18, would seem to undercut petitioners’ position, since it

reinforces the importance of ensuring that the President’s or

agency head’s “official actions in establishing a committee” are

complied with, rather than disregarded by, Executive Branch

subordinates. Jd. at 19.

Indeed, petitioners’ peculiar position appears to be that the

actual operation of a committee may dramatically (and

unlawfully) “deviate[] from the official directive of the

President” or an agency head, Pet. Br. at 19 — e.g., with regard

to the subject matter addressed by the committee, as well as its

actual membership — without any opportunity for judicial

oversight or relief. Obviously, that would allow even flagrant

violations of FACA to go unremedied, simply because they

developed after a committee’s initial creation. Cf National Anti-

Hunger Coalition v. Executive Committee of the Presidents

Private Sector Survey on Cost Control, 566 F. Supp. 1515, 1517

(D.D.C. 1983) (declaring that particular recommendations of

the Executive Committee of the President’s Private Sector

Survey on Cost Control “were developed and prepared in

violation of the requirements” of FACA because the

recommendations did “not fall within the narrow area of cost

and management control” for which the committee was

originally created and constituted).

Petitioners are also clearly wrong in asserting that the

distinction drawn in AAPS — i.e., between private parties who

have only sporadic involvement with a government-formed

committee and, on the other hand, such parties who “regularly

24

attend| ] and fully participate[]” in a committee’s work, 997 F.2d

at 915 — is not “necessary to address the concerns that led to

FACA’s enactment.” Pet. Br. at 19. For example, if, as

respondents have alleged, energy industry officials acted as

members of the NEPDG or Working Group or other subgroups—

and were thereby allowed to heavily (and covertly) influence

the advisory process — that would clearly implicate Congress’s

overriding interest in addressing the “great danger” in the

“unregulated use of advisory committees” where “special

interest groups may use their membership on such bodies to

promote their private concerns.” H. Rep. No. 1017, 92d Cong.,

2d Sess. 6 (1972). Indeed, the paradigmatic example of a

committee which Congress believed should be regulated through

FACA was:

the Advisory Council on Federal Reports, which was

organized ... at the request of the Office of

Management and Budget. When Council members

met with government officials to consider a proposed

national industrial wastes inventory questionnaire,

only representatives of industry were present.

No representatives of conservation, environment,

clean water, consumer, or other public interest

groups were present.

Id. (emphasis added).

Accordingly, if discovery were to reveal that energy industry

officials with vested interests in the outcome of the NEPDG’s

work were “functionally indistinguishable” from other members

of the NEPDG or Working Group (or other subgroups), then

this kind of advisory arrangement would unquestionably raise

the core “concerns that led to FACA’s enactment.” Pet. Br. at

19. In fact, petitioners’ own contention, based on the Supreme

Court’s description of FACA, that “Congress was concerned

with certain ‘specific ills, above all the wasteful expenditure of

public funds for worthless committee meetings and biased

proposals,’” Pet. Br. at 2 (emphasis added) (quoting Public

25

Citizen v. Department of Justice, 491 U.S. 440, 453 (1989)),

reinforces the importance of ascertaining whether energy

industry representatives were permitted to heavily influence

“proposals” for legislative and regulatory changes that

would directly benefit their industries. See also 5 U.S.C. App. 2

§§ 5(b)(3), (c) (providing that the “President, agency heads, or

other Federal officials” shall “assure that the advice and

recommendations of the advisory committee will not be

inappropriately influenced by the appointing authority or by any

special interest’’).*

In sum, allowing limited discovery here would afford a

factual basis for the lower courts to do precisely what petitioners

maintain is necessary — avoid “standardless, amorphous” judicial

review, Pet. Br. at 18 — and, instead, as AAPS counsels, determine

whether FACA’s purposes and provisions are implicated based

on the actual evidence of participation by non-federal employees

in the work of the NEPDG or Working Group or other subgroups.

On the other hand, it is petitioners who advocate for abstract

rulings on sweeping constitutional and other legal issues without

any meaningful factual record, and the resolution of which may

8. Thus, petitioners’ argument — based on a law review article —

that FACA compliance cannot be required here because “an advisory

committee that does not even acknowledge the participation of outside

experts cannot simultaneously use the participation of outside experts

to bolster the legitimacy of the advisory committee’s conclusions,”

Pet. Br. at 19, erroneously assumes that Congress was only concerned

with the use of “outside experts” for that purpose. Rather, Congress was

also gravely concerned that “special interest groups may use their

membership on such bodies to promote their private concerns,”

H. Rep. No. 1017, 92d Cong., 2d Sess. 6 (1972) (emphasis added) — a

problem that is obviously heightened when such participation is shielded

from public scrutiny. Petitioners’ reliance on a regulation previously

issued by the General Services Administration (“GSA”) is also misplaced,

see Pet. Br. at 14, because this Court, in Public Citizen, specifically

ruled that GSA’s regulations construing FACA are entitled to little, if

any, deference. See 491 U.S. at 465 n.12.

26

prove entirely unnecessary when such a record is finally

compiled.’

9. Petitioners also repeatedly, but mistakenly, insist that this Court’s

ruling in Public Citizen somehow supports their position that they should

be entirely “immune” from any discovery here. See Pet. Br. at 22. Public

Citizen does not even address the capacity of district courts to compile

and consider a factual record before deciding whether FACA applies, or

constitutionally can apply, to a particular advisory arrangement. To the

contrary, in Public Citizen, the case was decided on cross-motions for

summary judgment in the district court, based on factual materials

compiled and submitted by the parties concerning the role played by the

American Bar Association Standing Committee on Federal Judiciary

(“ABA Committee”), before there was review in this Court.

See Washington Legal Foundation v. United States Dept of Justice,

691 F. Supp. 483, 496 (D.D.C. 1988) (granting summary judgment

for defendants); id. at 486-88 (relying on undisputed material facts

submitted by the parties).

Moreover, far from suggesting that the lower courts should refrain

from allowing any discovery in order to assess FACA’s applicability in

particular situations, the Court’s reading of the Act in Public Citizen

actually supports compilation of a factual record. In ruling that FACA

did not apply to the ABA Committee, the Court rejected a “literal reading”

of what Congress meant by an advisory committee that was “utilized,”

although not directly “established,” by the government. 491 U.S. at 454.

Instead, the Court held that a committee created by a non-governmental

entity is “utilized” when it is, in fact, being used “‘by a department or

agency in the same manner as a Government-formed advisory

committee’” because it is “amenable to the strict management by”

Executive Branch officials. /d. at 457 (quoting Executive Order No.

11007). That test for FACA coverage necessitates a case-by-case analysis

as to whether there is sufficient “evidence” that Executive Branch

officials are engaging in “‘strict management” of a committee created

by another entity. Washington Legal Foundation v. United States

Sentencing Commission, 17 F.3d 1446, 1451 (D.C. Cir. 1994); see also

Food Chemical News v. Young, 900 F.2d 328, 332-33 (D.C. Cir. 1990).

27

Ill. PETITIONERS’ ARGUMENT THAT FACA

CANNOT BE APPLIED TO THE NEPDG WITHOUT

VIOLATING THE SEPARATION OF POWERS IS

PREMATURE, AND BASED ON A MISREADING OF

THIS COURT’S PRECEDENTS.

Even assuming that FACA applied to the NEPDG or

subgroups because they contained non-federal members,

“petitioners contend that because the exercise of the President's

authority under the Opinions and Recommendations Clause at

issue in this case involves powers expressly committed by the

Constitution to the Executive, Congress lacks any authority to

regulate the President’s exercise of those powers.” Pet. Br. at

41 (emphasis added); id. at 28 (arguing that application of FACA

would “interfere with core Executive Branch functions”).

Plainly, that position, if accepted, would mean that FACA could

not be constitutionally applied to any advisory committee that

the Executive Branch does not wish to subject to the Act’s

requirements.

For example, under the government's rigid reading of the

Recommendations Clause, FACA could not be applied to any

committee whose recommendations might bear on legislative

proposals. As explained by Judge Silberman in AAPS:

Whenever an executive branch group considers

policy initiatives, it discusses interchangeably new

legislation, executive orders, or other administrative

directives. Thus, virtually any time an advisory group

meets to discuss a problem, it will implicate the

Recommendation Clause, from which all executive

branch authority to recommend legislation derives.

Accordingly, if the application of FACA to groups

advising the President or anyone else in the executive

branch were constitutionally problematic, insofar

as those groups were advising on proposed

legislation, FACA would be problematic with regard

to virtually all policy advice. Under that reasoning

FACA would be constitutionally suspect on its face(}.

997 F.2d at 908 (emphasis added).

28

Similarly, if the Opinion Clause is construed as strictly

forbidding any Congressional regulation of the process by which

the President obtains advice from any source, as the government

insists, Pet. Br. at 30-32, then FACA is clearly unconstitutional

in its entirety for that reason as well. Even further, because every

committee formed to advise the Executive Branch will,

by definition, aid in the exercise of some constitutional

power vested in the Executive Branch — whether it be the

Recommendations or Opinion Clauses, the general

responsibility to “take care that the laws be faithfully executed,”

U.S. Const., Art. II, § 3, or some other constitutional provision

— the government's position is, in practical effect, an argument

that FACA should be deemed unconstitutional as applied to any

committee that advises the Executive Branch, regardless of its

subject matter or composition. Indeed, petitioners’ contention

that Congress cannot “‘inquire into matters which are within

the exclusive province’ of the Executive” and hence “cannot

empower the public to force disclosure of such matters,”

Pet. Br. at 31 (internal citation omitted) (emphasis added),

would, if accepted by the Court, not only compel wholesale

invalidation of FACA, but also the FOIA, the Sunshine Act,

and a host of other statutes that require the Executive Branch to

operate with a modicum of openness. See also 42 U.S.C.

§ 7607(d)(4) (requiring public disclosure of certain air quality

rulemakings).

There is no conceivable reason for the Court even to

consider this novel and far-reaching argument before the lower

courts have had an opportunity to resolve this case on the merits.

In any event, this Court has never adopted an approach to

resolving separation of powers issues that even arguably

resembles the sweeping, categorical approach espoused by

petitioners. To the contrary, in evaluating the constitutionality

of similar legislative schemes, including “open government”

statutes, the Court has employed a pragmatic balancing test.

Thus, in Nixon v. Administrator, General Services, 433 U.S.

425 (1977), in upholding the constitutionality of a statute

abitdanhen — —

29

providing for public access to some of President Nixon’s

materials, the Court held that:

in determining whether the Act disrupts the proper

balance between the coordinate branches, the proper

inquiry focuses on the extent to which it prevents

the Executive Branch from accomplishing its

constitutionally assigned functions. Only where the

potential for disruption is present must we then

determine whether that impact is justified by an

overriding need to promote objectives within the

constitutional authority of Congress.

Id. at 443; see also Morrison v. Olson, 487 U.S. 654, 692-93

(1988); Common Cause v. NRC, 674 F.2d 921, 935 (D.C.

Cir. 1982) (applying balancing analysis to application of

Sunshine Act and rejecting rigid approach to separation of

powers).

As both the district court and court of appeals have held,

the appropriate context in which to apply the balancing test

dictated by this Court’s precedents — as well as to make a

threshold determination of whether FACA even applies to

the advisory arrangement at issue — is after, not before, the

development of a factual record concerning the actual

composition of the NEPDG and its subgroups. For example,

if discovery supported an argument that the lower-level

Working Group should be deemed subject to FACA, but not

the NEPDG itself, that would obviously have a bearing on

the extent to which FACA’s application would intrude on

Executive Branch functions. Indeed, under that scenario, it

is not clear how the Opinion Clause would even be

implicated, since it applies only to the “Opinion, in writing,

of the principal Officer in each of the Departments.”

U.S. Const., Art. Il, § 2 (emphasis added). Similarly, the

compilation of a factual record would help the lower courts

assess the extent to which the Recommendations Clause is

actually implicated here, especially since the vast majority

of the NEPDG recommendations do not specifically call on

30

Congress to adopt new legislation but, rather, call for actions

to be taken entirely within the Executive Branch itself.

See, e.g., 66 Fed. Reg. 34,192 (June 27, 2001) (implementing

NEPDG recommendation calling for review of New Source

Review regulations); Executive Order 13212 (May 18, 2001)

(ordering “Actions to Expedite Energy-Related Projects,” as

recommended by NEPDG).

Further factual development would also shed light on the

other side of the balancing equation. As suggested previously,

petitioners arrive at the conclusion that “Congress’s legitimate

interests are non-existent” with regard to FACA’s potential

application here, Pet. Br. at 34 (emphasis added), only because

petitioners ignore entirely Congress’s important interest in

addressing the “great danger” in the “unregulated use of advisory

committees” where “special interest groups may use their

membership on such bodies to promote their private concerns,”

rather than the public good. H. Rep. No. 1017, 92d Cong., 2d

Sess. 6 (1972). Hence, if discovery reveals, as respondents

allege, that the advisory process at issue was dominated by

“special interest” influence from energy industry representatives,

then that would reinforce a “need to promote objectives within

the constitutional authority of Congress.” Nixon, 433 U.S. at

443; see also id. at 445 (the “regulation of materials generated

in the Executive Branch” through the open government

laws “has never been considered invalid as an invasion of

{Executive Branch] autonomy’). Once again, however, judicial

consideration of that and the other issues raised by petitioners

bearing on FACA’s constitutionality should await further factual

and legal development.

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals should be affirmed.

—

Respectfully submitted,

SHARON BuCccINO Eric R. GLITZENSTEIN

NATURAL RESOURCES Counsel of Record

DereNseE COUNCIL Howarp M. CrysTAL

Suite 400 Meyer & GLITZENSTEIN

Suite 700

1601 Connecticut Ave., N. W.

Washington, D.C. 20009

(202) 588-5206

1200 New York Ave., N.W.

Washington, D.C. 20005

Attorneys for Amicus Curiae

Amicus Curiae Brief Unavailable for Filming at This Time