In Re: Cheney
406 F.3d 723, 365 U.S. App. D.C. 387, 2005 WL 1083346 (2005)
Rule of Law:
To determine if a presidential advisory committee is "composed wholly of federal officials" and thus exempt from the Federal Advisory Committee Act (FACA), a strict interpretation applies: the committee is considered wholly federal if the President has not given any non-federal official a vote in or, if the committee acts by consensus, a veto over the committee's decisions, thereby mitigating separation-of-powers concerns.
Facts:
- On January 29, 2001, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG) within the Executive Office of the President to develop a national energy policy.
- President Bush named Vice President Cheney chairman of the NEPDG and assigned cabinet secretaries and other federal officials to serve as members.
- Five months after its establishment, the NEPDG issued its final report to the President and ceased to exist by September 30, 2001.
- Judicial Watch and the Sierra Club filed actions, later consolidated, seeking NEPDG documents, alleging the group was an "advisory committee" under FACA because non-federal employees "fully participated in non-public meetings...as if they were members."
- The President had only named federal officials to the NEPDG, and only federal officials signed its final report.
- Andrew Lundquist, Executive Director of the NEPDG, stated that no non-federal employees served as members or staff of the NEPDG and that meetings consisted only of federal officers.
- Lundquist further noted that NEPDG support staff met with non-governmental parties in "stakeholder meetings" to gather information, but these meetings did not involve deliberations or efforts to achieve consensus on advice.
- Karen Knutson, Deputy Assistant to the Vice President for Domestic Policy, declared that attendance at NEPDG meetings was "strictly limited" to federal officers and one federal employee of their department, with no outsiders participating.
Procedural Posture:
- Judicial Watch and the Sierra Club filed actions, later consolidated, against Vice President Cheney, the NEPDG, and federal officials serving on the NEPDG, alleging FACA violations and seeking document production.
- The government moved to dismiss the consolidated actions in the U.S. District Court for the District of Columbia.
- The District Court dismissed FACA claims against non-federal defendants and the NEPDG (because it ceased to exist) but refused to dismiss mandamus actions against Vice President Cheney, deferring a constitutional decision and approving plaintiffs' discovery plan.
- The government moved for a protective order and for leave to file a motion for summary judgment, both of which the District Court denied.
- The government petitioned the U.S. Court of Appeals for the D.C. Circuit for a writ of mandamus under the All Writs Act.
- A divided panel of the D.C. Circuit initially dismissed the government's petition, holding that while discovery was overly broad, the government had an alternative method of protection by invoking executive privilege.
- The Supreme Court granted certiorari, vacated the D.C. Circuit panel's judgment in Cheney v. U.S. Dist. Court, and remanded the case for reconsideration, instructing the D.C. Circuit to be sensitive to separation-of-powers objections and reexamine the statute's embodiment of the "de facto membership" doctrine.
- The D.C. Circuit granted the government's motion to rehear the case en banc.
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Issue:
Does a presidential advisory group become an "advisory committee" subject to the Federal Advisory Committee Act (FACA) if non-federal employees participate in its activities or meetings but do not have a vote or veto over its decisions, thereby requiring a writ of mandamus to compel its dismissal?
Opinions:
Majority - Randolph, Circuit Judge
Yes, the writ of mandamus should issue, because the National Energy Policy Development Group (NEPDG) was not an "advisory committee" subject to the Federal Advisory Committee Act (FACA), as non-federal employees did not possess a vote or veto over its decisions, and therefore the government owed no clear duty to the plaintiffs. Reconsidering the case en banc after remand from the Supreme Court, the court adopted a strict interpretation of FACA's exemption for groups "composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government." To mitigate severe separation-of-powers problems inherent in applying FACA to Presidential committees, particularly concerning the President's ability to seek confidential advice, the court held that such a committee is composed wholly of federal officials "if the President has given no one other than a federal official a vote in or, if the committee acts by consensus, a veto over the committee’s decisions." The court reasoned that mere participation, even influential, by non-federal individuals—akin to aides accompanying officials—does not confer membership if they lack decision-making power. Neither Judicial Watch nor the Sierra Club explicitly alleged that non-federal individuals had such a vote or veto. Furthermore, the Lundquist statement attached to Judicial Watch's complaint and the Knutson declaration confirmed that only federal officials attended NEPDG meetings and that staff "stakeholder meetings" with outsiders did not involve efforts to achieve consensus or collective judgment. Consequently, the plaintiffs failed to establish a clear and indisputable duty owed to them by the government under FACA, which is a prerequisite for mandamus relief. The court therefore directed the district court to dismiss the complaints.
Analysis:
This case significantly narrows the "de facto membership" doctrine under FACA, particularly regarding presidential advisory committees, by establishing a clear "vote or veto" test. It reinforces the importance of separation-of-powers concerns in interpreting statutes that could infringe upon presidential prerogatives, such as the President's ability to seek confidential advice. Future litigants attempting to apply FACA to groups within the Executive Office of the President will face a high bar, needing to demonstrate not just participation but actual decision-making authority by non-federal members. The ruling underscores judicial deference to executive branch autonomy in certain contexts and makes it easier for presidents to structure advisory groups free from FACA's disclosure requirements.
