States Court of Appeals, "In Re: Richard B. Cheney, Vice President
of the United States, et al., Petitioners," May 10, 2005
Archive joins library and public
interest groups supporting access to special interests in Cheney's
energy task force
National Security Archive files an amici curiae brief with
the United States Court of Appeals for the District of Columbia
Supreme Court Refuses to Approve
the Immunity from Discovery Sought by Vice President Cheney
on Energy Task Force to D.C. Circuit Court of Appeals
v. Vice President Cheney
National Security Archive Joins Amicus Brief in Supreme
Court Versus Government Secrecy Around Energy Task Force
May 10, 2005 - The D.C. Circuit today issued
a unanimous, en banc decision effectively
ending the effort by the Sierra Club and Judicial Watch to obtain
information about who participated in Vice President Cheney's National
Energy Policy Development Group (the "energy task force").
The plaintiffs' goal was to determine whether special interests
acted as de facto members of the task force, which would then permit
the plaintiffs to obtain further information about the task force's
activities and recommendations.
Without restating too much of the history of the case, the plaintiffs
sought information under the Federal Advisory Committee Act (FACA)
about participation in the task force by private lobbyists and corporations.
The trial court ordered limited discovery and did not address constitutional
concerns raised by the government. The government appealed to a
three judge panel of the D.C. Circuit. Two judges on the appeal
panel upheld the limited discovery, suggesting that the government
could invoke executive privilege in response to discovery requests.
A third judge dissented on the basis of separation of powers constitutional
The case then went to the Supreme Court, which did not address
the constitutional issues. Instead, the Supreme Court sent the case
back to the D.C. Circuit, suggesting that it may be appropriate
to search for pragmatic approaches that resolve those specific matters
genuinely in dispute while accommodating the legitimate interests
of all parties and avoiding the constitutional separation of powers
The plaintiffs then sought to have the case return to the trial
court, where they wanted to limit their discovery even further than
originally permitted by the district court. But, instead, the D.C.
Circuit agreed to hear further argument en banc (all of
the active appellate judges participated in the proceeding). At
argument, the judges seemed to view the plaintiffs' showing of non-governmental
special interests' involvement in the task force as weak, especially
in light of the sworn declarations presented by the government.
The government repeatedly urged the D.C. Circuit to go beyond this
threshold issue, however, and construe FACA as unconstitutional
when applied to the executive or lacking a de facto member
doctrine. (Notably, the de facto member doctrine was established
in a D.C. Circuit case finding that Hillary Clinton's health care
task force was subject to FACA).
Today the D.C. Circuit ruled in favor of the government. Heeding
the Supreme Court's cautions, the D.C. Circuit did not make a finding
that FACA would violate separation of powers principles if imposed
on the executive branch. To avoid the constitutional issue, the
court took a technical approach to the statute and held that so
long as the government committee's official members are only government
employees, the committee will not become subject to FACA merely
because some outsider participates in the meetings of the committee,
or even does so persuasively. So long as the outsider has no vote
on the committee, then FACA does not apply. Unfortunately, this
means that the transparency goals of FACA can always be avoided
by naming only government employees to the committee, regardless
of who in fact influences the committee.
The court also found that the factual record in this case (based
on the government's sworn declaration) does not establish the participation
of any outsiders in the energy task force meetings, and thus there
would be no basis for invoking FACA anyway. Since the plaintiffs
never were able to conduct any discovery, they were never able to
get behind the bland assurances in the declaration.