In Re Cheney

406 F.3d 723 (D.C. Cir. 2005)


In 2001, President Bush issued a memorandum establishing the National Energy Policy Development Group for the purpose of developing a national energy policy. The President named Vice President Cheney chairman and assigned cabinet secretaries and other federal officials to serve with the Vice President. Judicial Watch and the Sierra Club (Ps) filed actions seeking NEPDG documents on the ground that the group was an 'advisory committee' within the meaning of the FACA. Judicial Watch (P) 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, were members of the NEPDG.' Sierra Club (P) claimed that the NEPDG and 'Task Force Sub-Groups were not composed wholly of full-time officers or employees of the federal government,' apparently because 'energy 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.' These 'Task Force Sub-Groups,' 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.' Ps invoked the APA, 5 U.S.C. § 706, and the Mandamus Act, 28 U.S.C. § 1361, and named as Ds. D moved to dismiss, arguing, 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. Eventually, the case made it to the Supreme Court and was remanded back to this court.