In Re: Cheney

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc January 27, 2005 Decided May 10, 2005

No. 02-5354

IN RE: RICHARD B. CHENEY, VICE PRESIDENT OF THE
UNITED STATES, ET AL.,
PETITIONERS

Consolidated with Nos.
02-5355 & 02-5356

On Petition for Writ of Mandamus and
Appeals from the United States District Court
for the District of Columbia
(01cv01530)
(02cv00631)

Paul D. Clement, Acting Solicitor General, U.S.
Department of Justice, argued the cause for petitioners. With
him on the briefs were Peter D. Keisler, Assistant Attorney
General, Kenneth L. Wainstein, United States Attorney, Edwin
S. Kneedler, Deputy Solicitor General, Gregory G. Katsas,
Deputy Assistant Attorney General, David B. Salmons and
Douglas Hallward-Driemeier, Assistants to the Solicitor
General, and Mark B. Stern, Thomas M. Bondy, and Michael S.
Raab, Attorneys. Eric D. Miller, Attorney, and Shannon W.
Coffin entered appearances.
 2

Sanjay Narayan and Paul J. Orfanedes argued the cause for
respondents Sierra Club and Judicial Watch, Inc. With them on
the brief were Alex Levinson, David Bookbinder, Roger
Adelman, and James F. Peterson.

David Overlook Stewart, Thomas M. Susman, and Stacy J.
Dawson were on the brief of amici curiae American Association
for Law Libraries, et al. in support of respondents.

Before: GINSBURG, Chief Judge, and EDWARDS, SENTELLE,
RANDOLPH, ROGERS, TATEL, GARLAND, and ROBERTS, Circuit
Judges.

Opinion for the Court En Banc filed by Circuit Judge
RANDOLPH.

RANDOLPH, Circuit Judge: The Supreme Court vacated our
decision in In re Cheney, 334 F.3d 1096 (D.C. Cir. 2003), and
remanded the case for reconsideration of the government’s
petition for a writ of mandamus. Cheney v. U.S. Dist. Court,
124 S. Ct. 2576 (2004). We granted the government’s motion
to rehear the case en banc. The Supreme Court’s opinion, and
our opinion, lay out the history of these proceedings in
considerable detail. We will assume familiarity with both
opinions and state only the essentials. The ultimate issue is
whether this court should issue a writ of mandamus ordering the
district court to dismiss the case.

I.

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 for the purpose of developing a “national energy
policy designed to help the private sector, and government at all
 3

levels, promote dependable, affordable, and environmentally
sound production and distribution of energy for the future.” The
President named Vice President Cheney chairman and assigned
cabinet secretaries and other federal officials to serve with the
Vice President. Five months later, the NEPDG issued its final
report to the President. As the President directed, the NEPDG
ceased to exist as of “the end of fiscal year 2001,” that is,
September 30, 2001.

Judicial Watch and the Sierra Club filed actions, later
consolidated, seeking NEPDG documents on the ground that the
group was an “advisory committee” within the meaning of the
Federal Advisory Committee Act, or FACA, 5 U.S.C. App. § 3.
“‘[A]dvisory committee’ means any committee, board,
commission, council, conference, panel, task force, or other
similar group, or any subcommittee or other subgroup thereof”
“established or utilized by the President” or an agency for the
purpose “of obtaining advice.” Id. § 3(2). Exempted from
FACA are groups “composed wholly of full-time, or permanent
part-time, officers or employees of the Federal Government.”
Id. Subject to the Freedom of Information Act, 5 U.S.C. § 552,
each FACA advisory committee must make publicly available
its “records, reports, transcripts, minutes, appendixes, working
papers, drafts, studies, agenda, or other documents which were
made available to or prepared for or by” the committee. 5
U.S.C. App. § 10(b).

The only individuals the President named to the NEPDG
were federal officials; only federal officials signed the final
report. To avoid the exemption in § 3(2) of FACA, Judicial
Watch alleged, on information and belief, that non-federal
employees “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.
Sierra Club’s allegations were somewhat different. It claimed
 4

that the NEPDG and “Task Force Sub-Groups were not
composed wholly of full time officers or employees of the
federal government,” apparently because “[e]nergy industry
executives, including multiple representatives of single energy
companies, and other non-federal employees, attended meetings
and participated in activities of [the NEPDG] and Task Force
Sub-Groups.” Sierra Club Compl. ¶ 19. These “Task Force
Sub-Groups,” the Sierra Club alleged, became FACA advisory
committees when federal officials “participated in and exercised
responsibility over meetings and other activities involving
groups of energy industry executives and other non-federal
employees, for the purpose of obtaining advice and
recommendations on the Administration’s national energy
policy.” Id. ¶ 18. As the Supreme Court noted, both Judicial
Watch and the Sierra Club relied on Association of American
Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir.
1993) (“AAPS”), to “contend that the regular participation of the
non-Government individuals made them de facto members of
the committee.” Cheney v. U.S. Dist. Court, 124 S. Ct. at 2583.

The complaints invoked the Administrative Procedure Act,
5 U.S.C. § 706, and the Mandamus Act, 28 U.S.C. § 1361, and
named as defendants the Vice President, the NEPDG, and the
federal officials who served on the NEPDG. The Judicial Watch
complaint also listed as defendants alleged de facto non-federal
members of the Group. Plaintiffs sought a declaratory judgment
and an injunction requiring the production of all materials
subject to disclosure under FACA.

The government moved to dismiss, arguing, among other
things, that FACA did not create a cause of action and that
application of FACA to the NEPDG would infringe upon the
President’s constitutional authority to recommend legislation to
Congress and to require opinions from department heads. The
district court agreed that FACA did not create a private cause of
 5

action and dismissed Judicial Watch’s claims against the non-
federal defendants. Judicial Watch v. Nat'l Energy Policy Dev.
Group, 219 F. Supp. 2d 20, 34 (D.D.C. 2002). The court also
dismissed the claims against the NEPDG because it no longer
existed. Id. at 35. But the court refused to dismiss the
mandamus actions against the Vice President. Id. at 44.1 While
acknowledging the force of the government’s separation-of-
powers argument, the court thought it should withhold decision
on the constitutional question until further factual development.
Id. at 54. The court then approved the plaintiffs’ discovery plan.
The government moved for a protective order, arguing that
discovery against the Vice President would itself violate the
separation of powers. With its motion, the government
submitted an affidavit from the Deputy Assistant to the Vice
President for Domestic Policy. On behalf of the Vice President,
the government also moved for leave to file a motion for
summary judgment. The court denied the government’s motion
for a protective order and refused to certify an appeal pursuant
to 28 U.S.C. § 1292(b).

On the government’s petition for a writ of mandamus
against the district court, under the All Writs Act, 28 U.S.C.
§ 1651, a divided panel of this court held that although
plaintiffs’ discovery request was overly broad, the government
had an alternative method of protecting itself because it could
invoke executive privilege to prevent discovery. In re Cheney,

1
The court granted the government’s motion to dismiss the APA
claims against the Vice President but refused to rule on the APA
claims against those federal defendants who headed agencies. 219 F.
Supp. 2d at 39-40. In the meantime, as Judicial Watch and the Sierra
Club now concede, the agency heads complied with the discovery
orders the government challenges in its mandamus petition in this
court. Brief for Sierra Club and Judicial Watch at 4. The APA is
therefore no longer part of this case.
 6

334 F.3d at 1105-06. The court therefore dismissed the
government’s petition. Id. at 1109. In so ruling, the court stated
that if “limited discovery” revealed “some degree of
participation by non-federal personnel, then the district court
will have to decide whether that participation amounts to de
facto membership” under AAPS. Id. at 1108.

The Supreme Court agreed that the discovery plan,
approved by the district court, was “overly broad,” 124 S. Ct. at
2590, and “unbounded in scope,” id. at 2591, seeking
“everything under the sky,” id. at 2590. But the Court ruled that
this court had “prematurely terminated its inquiry” into whether
a writ of mandamus should issue, and had done so “without even
reaching the weighty separation-of-powers objections raised in
the case,” and without exercising “discretion” to decide if the
writ is appropriate. Id. at 2593. The Court therefore vacated the
judgment and remanded the case, stating that this court “should
be sensitive to requests by the Government for interlocutory
appeals to reexamine, for example, whether the statute embodies
the de facto membership doctrine” of AAPS. Id.

II.

In considering FACA’s application to a committee within
the Executive Office of the President, we must keep in mind that
the statute does considerably more than require each “advisory
committee” to disclose publicly documents that would otherwise
remain confidential. Advisory committees must also file a
charter; announce their upcoming meetings in the Federal
Register; hold their meetings in public; and keep detailed
minutes of each meeting. 5 U.S.C. App. § 9(c); §§ 10(a)(1), (2),
(b) & (c); § 11. In addition, each such committee must “be
fairly balanced in terms of the points of view represented” and
may “not be inappropriately influenced by the appointing
authority or by any special interest.” Id. §§ 5(b)(2), (3) & (c).
 7

Although we do not reach the question whether applying FACA
to Presidential committees such as the NEPDG would be
constitutional, separation-of-powers considerations have an
important bearing on the proper interpretation of the statute, see
Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466
(1989), and on the district court’s mandamus jurisdiction.
“[S]pecial considerations control when the Executive Branch’s
interest in maintaining the autonomy of its office and
safeguarding the confidentiality of its communications are
implicated.” Cheney v. U.S. Dist. Court, 124 S. Ct. at 2589.

As to FACA, the critical question is whether plaintiffs have
carried their burden of showing that the NEPDG or its so-called
“Sub-Groups” were “advisory committees,” that is, committees
who were advising the President but were not “composed wholly
of full-time, or permanent part-time, officers or employees of
the Federal Government,” 5 U.S.C. App. § 3(2). While it is
often easy to determine who is and who is not a federal
employee, the question this lawsuit raises is different.
Application of FACA depends on who is a member of a
committee and who is not. On that subject, FACA is silent.

In light of the severe separation-of-powers problems in
applying FACA on the basis that private parties participated in,
or influenced, or were otherwise involved with a committee in
the Executive Office of the President, we must construe the
statute strictly. We therefore hold 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.

Congress could not have meant that participation in
committee meetings or activities, even influential participation,
would be enough to make someone a member of the committee.
When congressional committees hold hearings, it is
 8

commonplace for the Senate or House members of the
committee to bring aides with them. The same is true when
high-ranking Executive Branch officials serving on committees
attend committee meetings. They, too, commonly bring aides
with them. An aide might exert great influence, but no one
would say that the aide was, therefore, a member of the
committee. The situation is comparable if an individual, not
employed by the federal government, attends meetings or
participates in the activities of a Presidential committee whose
official membership consists only of federal officials. The
outsider might make an important presentation, he might be
persuasive, the information he provides might affect the
committee’s judgment. But having neither a vote nor a veto
over the advice the committee renders to the President, he is no
more a member of the committee than the aides who accompany
Congressmen or cabinet officers to committee meetings.

Separation-of-powers concerns strongly support this
interpretation of FACA. In making decisions on personnel and
policy, and in formulating legislative proposals, the President
must be free to seek confidential information from many
sources, both inside the government and outside. See U.S.
CONST . art. II, § 1, cl.1; § 2, cls. 1 & 2; § 3; see Public Citizen,
491 U.S. at 466-67 (Kennedy, J., concurring in the judgment,
joined by Rehnquist, C.J., and O’Connor, J.); id. at 488. If the
President considers appointing a committee to advise him on a
policy matter, as he did in this case, he has two options. He may
choose to form a FACA committee by appointing some of its
members from outside the federal government. Or he may
choose to form a committee composed only of federal
employees and thus exempt from FACA. By following the
latter course, the President can easily create an advisory body
whose internal communications will remain confidential, so long
as the right to vote or veto is not later extended to a non-federal
employee.
 9

III.

With this interpretation of FACA in mind we turn to
plaintiffs’ actions for mandamus-type relief. We put the matter
in these terms because it is not technically accurate to speak of
their actions as petitions for a writ of mandamus. Rule 81(b) of
the Federal Rules of Civil Procedure long ago abolished the writ
of mandamus in the district courts (although not in the appellate
courts). But the Rule permitted “[r]elief heretofore available by
mandamus” to be obtained by actions brought in compliance
with the rules. FED. R. CIV. P. 81(b). “The principles that
governed the former writ now govern attempts to secure similar
relief,” such as a mandatory injunction ordering a government
employee or agency to perform a duty owed to the plaintiff.
Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 n.7 (D.C. Cir.
1985) (Scalia, J.); see HART & WECHSLER’S THE F EDERAL
COURTS AND THE FEDERAL S YSTEM 941-42 (5th ed. 2003).
Thus, the Mandamus Act, on which plaintiffs relied, confers
jurisdiction on the district courts over actions “in the nature of
mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the
plaintiff.” 28 U.S.C. § 1361.

Jurisdiction over actions “in the nature of mandamus” under
§ 1361, like jurisdiction over the now-abolished petitions for
writs of mandamus, is strictly confined. As the original panel in
this case rightly pointed out, mandamus 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; and even if the
plaintiff overcomes all these hurdles, whether mandamus relief
should issue is discretionary. See 334 F.3d at 1101-02.
Although the panel was speaking of this court’s mandamus
jurisdiction under the All Writs Act, the Supreme Court held
 10

that the district court’s “analysis of whether mandamus relief is
appropriate should itself be constrained” by the same principles.
Cheney v. U.S. Dist. Court, 124 S. Ct. at 2593; see Heckler v.
Ringer, 466 U.S. 602, 616 (1984).

We held in 13th Regional Corp. v. Dep’t of the Interior, 654
F.2d 758 (D.C. Cir. 1980), that the word “duty” in § 1361 must
be narrowly defined, and that a plaintiff’s legal grounds
supporting the government’s duty to him must “be clear and
compelling.” Id. at 760. This does not mean that mandamus
actions are ruled out whenever the statute allegedly creating the
duty is ambiguous. Id. The district court still must interpret the
underlying statute, as must we. But if there is no clear and
compelling duty under the statute as interpreted, the district
court must dismiss the action. To this extent, mandamus
jurisdiction under § 1361 merges with the merits.

Neither Judicial Watch nor the Sierra Club explicitly
claimed that any non-federal individual had a vote on the
NEPDG or had a veto over its decisions. Sierra Club Compl.
¶ 18. Judicial Watch did state, on information and belief, that
individuals not employed by the federal government “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. It is perhaps possible
to view this portion of the complaint as alleging that non-federal
employees had the right to vote on, or to veto, NEPDG decisions
during its meetings. But such allegations are belied by the
statement of Andrew Lundquist, Executive Director of the
NEPDG, which Judicial Watch attached to its complaint. In
determining whether to dismiss, courts treat documents attached
to a complaint as if they are part of the complaint. See EEOC v.
St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C.
Cir. 1997). Lundquist’s statement, dated May 4, 2001, answered
inquiries from the ranking minority members of two committees
 11

of the House of Representatives. In response to a question
asking for a list of the members of the NEPDG, Lundquist
named the Vice President, seven cabinet members, and several
other federal officers. He stated that no non-federal employees
served as members or staff of the NEPDG. He also stated that
the NEPDG’s meetings were held in January, February, March,
April, and May, and that the meetings consisted only of federal
officers. And there is nothing to indicate that non-federal
employees had a right to vote on committee matters or exercise
a veto over committee proposals. Therefore, the NEPDG was
not a FACA advisory committee. It follows that the government
owed the plaintiffs no duty, let alone a clear and indisputable or
compelling one.

That neither Sierra Club nor Judicial Watch had a clear
right to have the government perform a duty owed to them
became even more apparent in view of the sworn declaration of
Karen Knutson, filed by the government with the district court
in September 2002. See F ED. R. CIV. P. 12(h)(3) (“Whenever it
appears by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court shall dismiss
the action.”). At the time of her declaration, and during the
existence of the NEPDG, Knutson served as the Deputy
Assistant to the Vice President for Domestic Policy. The
Knutson declaration, based on personal knowledge, further
confirmed that attendance at NEPDG meetings was “strictly
limited” to federal officers and one federal employee of the
officer’s department. At another point, the declaration
emphasized that no outsiders participated in any NEPDG
meetings.2

2
A Report of the Government Accounting Office in 2003, on which
plaintiffs rely, also reported the statements of the federal officials who
attended NEPDG meetings that attendance was limited to federal
officers and employees. GAO, Energy Task Force: Process Used to
 12

Plaintiffs also contended that so-called “Task Force Sub-
Groups” were FACA advisory committees. Judicial Watch
Compl. ¶ 53; Sierra Club Compl. ¶¶ 18-19. FACA defines
“advisory committee” to include not only committees and other
such groups, but also “any subcommittee or other subgroup
thereof.” 5 U.S.C. App. § 3(2). President Bush, in his directive
establishing the NEPDG, gave the Vice President the authority
to set up “subordinate working groups,” but the Vice President
never exercised this authority. See Decl. of Karen Knutson ¶ 11,
Sept. 3, 2002. Judicial Watch admits as much. Its complaint
stated that the subgroups it had in mind were established
“without specific authorization” of the President. Judicial
Watch Compl. ¶ 54f. While the complaints alleged that persons
other than federal officials participated in the work of
subgroups, e.g., Sierra Club Compl. ¶¶ 18-19, other allegations
indicate that plaintiffs were referring to the NEPDG’s staff’s
“so-called ‘stakeholder meetings’” with non-governmental
parties, Judicial Watch Compl. ¶ 30. There is no allegation,
however, that any supposed subgroup made an official decision,
much less that anyone other than a federal official had a vote in
or veto over such a decision. Indeed, the Lundquist statement
attached to Judicial Watch’s complaint made this clear by noting
that federal employees on the NEPDG support staff “have met
with many individuals who are not Federal employees to gather
information relevant to the Group’s work, but such meetings do
not involve deliberations or any effort to achieve consensus on
advice or recommendations. These meetings by the Group’s
staff were simply forums to collect individual views rather than
to bring a collective judgment to bear.” Responses of Andrew
Lundquist at 2, May 4, 2001. If the NEPDG staff’s “stakeholder

Develop the National Energy Policy 9 (Aug. 2003). The GAO
examined the method by which the NEPDG developed its final report
and sought to determine the costs associated with formulating the
report. Id. at 1.
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meetings” involved no “effort to achieve consensus” or
“collective judgment,” then clearly no non-government
participants in those meetings exercised any vote or veto.
Reinforcing this conclusion, the Knutson affidavit reported that
no one other than federal officials “attended or participated in
any meetings of the NEPDG or the Staff Working Group.” The
“Task Force Sub-Groups” were therefore not FACA
committees.

* * *

For all of these reasons we hold that plaintiffs have failed
to establish any duty, let alone a clear and indisputable duty,
owed to them by the federal government under FACA. We shall
therefore issue a writ of mandamus pursuant to 28 U.S.C. § 1651
directing the district court to dismiss the complaints.

So ordered.