542 U.S. 367 (S.Ct.2004)
In January 2001, shortly after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group.1
The Group was directed to develop a national energy policy designed to help promote dependable, affordable, and environmentally sound production and distribution of energy.2 The President assigned agency heads and assistants, all federal employees, to serve as members of the committee.3 He authorized the Vice President, as chairman, to invite other officers of the Federal Government to participate as appropriate.4 Five months later the NEPDG issued a final report and, according to the Government, terminated all operations.5
Following publication of the report, Judicial Watch, Inc., and the Sierra Club filed separate actions in the United States District Court for the District of Columbia that were later consolidated.6 The plaintiffs alleged that the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act.7 Non-federal employees including private lobbyists regularly attended and fully participated in non-public meetings.8 Respondents contend that the regular participation of the non-Government individuals made them de facto members of the committee.9 The suits named Vice President Cheney, the NEPDG, government officials who served on the committee, and the alleged de facto members as defendants.10 The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA's requirements.11
The District Court granted the motion to dismiss in part and denied it in part.12 It dismissed respondents' claims against the non-Government defendants.13 Because the NEPDG had been dissolved, it could not be sued as a defendant, and the claims against it were dismissed as well.14 The District Court held that FACA's substantive requirements could be enforced against the Vice President and other Government participants on the NEPDG under the Mandamus Act and against the agency defendants under the Administrative Procedure Act.15 The court allowed respondents to conduct a tightly reined discovery to ascertain the NEPDG's structure and membership.16 The District Court denied in part the motion to dismiss and ordered respondents to submit a discovery plan.17 Petitioners including the Vice President sought a writ of mandamus in the Court of Appeals for the District of Columbia Circuit to vacate the discovery orders, direct the District Court to rule on the basis of the administrative record, and dismiss the Vice President from the suit.18 A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President's attempted interlocutory appeal.19 The Supreme Court granted certiorari.20
Whether the Court of Appeals for the District of Columbia Circuit should have issued a writ of mandamus to vacate the District Court's discovery orders directed at the Vice President and other Executive Branch officials?21
Mandamus is a drastic and extraordinary remedy reserved for really extraordinary causes.22 The petitioner must show no other adequate means to attain the relief desired.23 The petitioner must show a clear and indisputable right to issuance of the writ.24 The writ must be appropriate under the circumstances.25 When the petition implicates separation of powers by threatening interference with the Executive Branch's ability to discharge its constitutional responsibilities, these considerations inform the court of appeals evaluation even before executive privilege is asserted.26
Yes. The District Court approved respondents' discovery plan that included broad document requests and interrogatories after holding that FACA requirements could be enforced against the Vice President and other government participants on the NEPDG. The Court of Appeals denied the petition for mandamus on the ground that alternative avenues remained available through assertion of executive privilege.27 The discovery orders were directed to the Vice President and other senior officials who served on the NEPDG.28 The orders sought all documents identifying staff, personnel, contractors, consultants or employees of the Task Force.29 The orders also sought all documents concerning any communication relating to the activities of the Task Force.30 These facts establish that the orders threatened substantial intrusions on the process by which those in closest operational proximity to the President advise the President.31 The separation of powers concerns arise from the unique position of the Executive Branch.32 The need to protect confidentiality of high level communications therefore required the Court of Appeals to issue the writ rather than require the Government to assert privilege first.
The established facts further show that the Government objected to the scope of discovery and asked the District Court to narrow it in some way.33 The Government did not assert executive privilege or file particularized objections. The Court of Appeals majority nevertheless held that mandamus was premature because the separation of powers conflict remained hypothetical.34 This approach overlooked the overbreadth of the requests which the Court of Appeals itself acknowledged went well beyond FACA requirements.35 Because the Vice President and his comembers on the NEPDG were the subjects of the discovery orders the mandamus petition presented exceptional circumstances amounting to a judicial usurpation of power that warranted relief.36
The Court of Appeals should have issued the writ of mandamus to vacate the District Court's discovery orders.37
Related opinions on this issue
Joined by Ginsburg, J.
Justice Stevens wrote that broad discovery should be encouraged when it facilitates prompt and fair resolution of disputes.38 Mandamus is an extraordinary remedy available only if the defendant owes a clear nondiscretionary duty.39 Respondents sought through discovery the very records to which they would be entitled if they won their lawsuit.40
The District Court should have required respondents to demonstrate that particular requests would tend to establish their theory of the case rather than requiring petitioners to object to every request.41 Justice Stevens joined the judgment because the Court of Appeals as architect of the de facto member doctrine was the appropriate forum to direct future proceedings.42
Joined by Scalia, J.
Justice Thomas agreed that mandamus is a drastic remedy.43 Respondents faced the same burden to obtain relief from the District Court under the Mandamus Act.44 The District Court could not even determine whether FACA applies to the National Energy Policy Development Group as a statutory matter.45
Application of the de facto member doctrine to authorize broad discovery had the same potential to offend separation of powers.46 The District Court clearly exceeded its authority in this case.47 Justice Thomas would have reversed the judgment of the Court of Appeals and remanded the case with instruction to issue the writ.48
Whether the District Court's discovery orders were overbroad in scope and threatened to interfere with the ability of the Vice President and other high-ranking officials to discharge their constitutional duties?49
Discovery requests directed to the Vice President and other senior Executive Branch officials must be evaluated with special sensitivity to the Executive's interest in maintaining the autonomy of its office and safeguarding the confidentiality of its communications.50 When the requests seek everything under the sky rather than satisfying standards of relevancy, admissibility, and specificity they impose an unwarranted burden that can impair the energetic performance of constitutional duties.51
Yes. The District Court approved a discovery plan containing requests for all documents identifying or referring to any staff, personnel, contractors, consultants or employees of the Task Force. The plan also sought all documents concerning any communication relating to the activities of the Task Force between any person and a list of agencies.52 The Court of Appeals acknowledged that these requests were overly broad and went well beyond what respondents would need if they ultimately prevailed on the merits.53 The established facts show that the orders required production of nonprivileged documents and a privilege log while the Government bore the burden of making particularized objections.54 These facts demonstrate that the orders threatened to interfere with the ability of the Vice President and other high ranking officials to discharge their constitutional duties.55 This occurred by imposing a real burden on the Office of the Vice President and by requiring line by line critique of unacceptable requests.
The distinction between criminal and civil proceedings recognized in precedent further supports this conclusion because the need for information in civil litigation does not share the urgency or constitutional dimensions of criminal subpoena requests.56 The District Court's approach of allowing tightly reined discovery to ascertain the NEPDG structure and membership therefore created an unwarranted intrusion into the Executive Branch sphere.57
The District Court's discovery orders were overbroad in scope and threatened to interfere with the ability of the Vice President and other high-ranking officials to discharge their constitutional duties.58
Related opinions on this issue
Joined by Souter, J.
Justice Ginsburg joined Justice Stevens' dissent and wrote separately to emphasize that the Executive Branch position if accepted would insulate a vast range of governmental activity from judicial review.59 The Government never asked the District Court to narrow discovery.60 The Government instead resisted all discovery urging that the case be resolved on the administrative record alone.61
The District Court had expressed willingness to tightly rein in discovery and to consider privilege claims on a document by document basis.62 The majority decision short circuits that process and represents an unwarranted expansion of the mandamus remedy.63 Justice Ginsburg would have affirmed the judgment of the Court of Appeals denying the writ.64
Whether the Executive Branch was required to assert executive privilege with particularity before the Court of Appeals could consider granting mandamus relief from the discovery orders?65
Executive privilege is an extraordinary assertion of power not to be lightly invoked.66 Once asserted it sets coequal branches on a collision course that courts should avoid whenever possible.67 A court of appeals may consider separation of powers objections to overbroad discovery without first requiring the Executive Branch to assert privilege with particularity when the requests themselves are anything but appropriate.68
No. The Court of Appeals held that petitioners must first assert privilege with particularity before mandamus could issue relying on precedent that rejected an absolute unqualified presidential privilege.69 The established facts show that the Government did object to the scope of discovery and asked the District Court to narrow it in some way. The District Court rejected these arguments and insisted that the Vice President winnow the orders by asserting specific claims of privilege.70 These facts establish that the Court of Appeals erred in treating assertion of privilege as a necessary precondition to consideration of the Government's separation of powers objections.71 The overbreadth of the requests alone supported mandamus relief without forcing the Executive to invoke privilege and thereby set the branches on a collision course.72
Precedent confirms that the Judiciary may direct appropriate process to the Executive.73 The high respect owed to the office of the Chief Executive should inform the conduct of the entire proceeding including the timing and scope of discovery.74 The Court of Appeals therefore should have addressed the weighty separation of powers objections without requiring the privilege assertion first.75
The Executive Branch was not required to assert executive privilege with particularity before the Court of Appeals could consider granting mandamus relief from the discovery orders.76