Lead Opinion
delivered the opinion of the Court.
The United States District Court for the District of Columbia entered discovery orders directing the Vice President and other senior officials in the Executive Branch to produce information about a task force established to give advice and make policy recommendations to the President. This case requires us to consider the circumstances under which a court of appeals may exercise its power to issue a writ of mandamus to modify or dissolve the orders when, by virtue of their overbreadth, enforcement might interfere with the
I
A few days after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG or Group). The Group was directed to “develo[p]... a national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future.” App. 156-157. The President assigned a number of agency heads and assistants — all employees of the Federal Government — to serve as members of the committee. He authorized the Vice President, as chairman of the Group, to invite “other officers of the Federal Government” to participate “as appropriate.” Id., at 157. Five months later, the NEPDG issued a final report and, according to the Government, terminated all operations.
Following publication of the report, respondents Judicial Watch, Inc., and the Sierra Club filed these separate actions, which were later consolidated in the District Court. Respondents alleged the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act (FACA or Act), 5 U. S. C. App. §2, p. 1.
FACA was enacted to monitor the “numerous committees, boards, commissions, councils, and similar groups [that] have been established to advise officers and agencies in the executive branch of the Federal Government,” § 2(a), and to prevent the “wasteful expenditure of public funds” that may result from their proliferation, Public Citizen v. Department of Justice,
*374 “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof. . . , which is—
“(B) established or utilized by the President,... except that [the definition] excludes (i) any committee that is composed wholly of full-time, or permanent part-time, officers , or employees of the Federal Government. .. .” 5 U. S. C. App. §3(2), p. 2.
Respondents do not dispute the President appointed only Federal Government officials to the NEPDG. They agree that the NEPDG, as established by the President in his memorandum, was “composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.” Ibid. The complaint alleges, however, that “non-federal employees,” including “private lobbyists,” “regularly attended and fully participated in non-public meetings.” App. 21 (Judicial Watch Complaint ¶ 25). Relying on Association of American Physicians & Surgeons, Inc. v. Clinton,
Vice President Cheney, the NEPDG, the Government officials who served on the committee, and the alleged de facto members were named as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA’s requirements.
All defendants moved to dismiss. The District Court granted the motion in part and denied it in part. The court acknowledged FACA does not create a private cause of action. On this basis, it dismissed respondents’ claims against
The District Court deferred ruling on the Government’s contention that to disregard the exemption and apply FACA to the NEPDG would violate principles of separation of powers and interfere with the constitutional prerogatives of the President and the Vice President. Instead, the court allowed respondents to conduct a “tightly-reined” discovery to ascertain the NEPDG’s structure and membership, and thus to determine whether the de facto membership doctrine applies. Judicial Watch, Inc. v. National Energy Policy Dev. Group,
In due course the District Court approved respondents’ discovery plan, entered a series of orders allowing discovery to proceed, see CADC App. 238, 263, 364 (reproducing orders entered on Sept. 9, Oct. 17, and Nov. 1, 2002), and denied the Government’s motion for certification under 28 U. S. C. § 1292(b) with, respect to the discovery orders. Petitioners sought a writ of mandamus in the Court of Appeals to vacate the discovery orders, to direct the District Court to rule on the basis of the administrative record, and to dismiss the Vice President from the suit. The Vice President also filed a notice of appeal from the same orders. See Cohen v. Beneficial Industrial Loan Corp.,
A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President’s attempted interlocutory appeal. In re Cheney,
For similar reasons, the majority rejected the Vice President’s interlocutory appeal. In United States v. Nixon, the Court held that the President could appeal an interlocutory subpoena order without having “to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review.”
Judge Randolph filed a dissenting opinion. In his view A APS’ de facto membership doctrine is mistaken, and the Constitution bars its application to the NEPDG. Allowing discovery to determine the applicability of the defacto membership doctrine, he concluded, is inappropriate. He would
We granted certiorari.
II
As a preliminary matter, we address respondents’ argument that the Government’s petition fór a writ of mandamus was jurisdictionally out of time or, alternatively, barred by the equitable doctrine of laches. According to respondents, because the Government’s basic argument was one of discovery immunity — that is, it need not invoke executive privilege or make particular objections to the discovery requests — the mandamus petition should have been filed with the Court of Appeals within 60 days after the District Court denied the Government’s motion to dismiss. Sée Fed. Rule App. Proc. 4(a)(1)(B) (“When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered”). On this theory, the last day for making any filing to the Court of Appeals was September 9, 2002. The Government, however, did not file the mandamus petition and the notice of appeal until November 7, four months after the District Court issued the order that, under respondents’ view, commenced the time for appeal.
As even respondents acknowledge, however, Rule 4(a), by its plain terms, applies only to the filing of a notice of appeal. Brief for Respondent Sierra Club 23. Rule 4(a) is inapplicable to the Government’s mandamus petition under the All Writs Act, 28 U. S. C. § 1651. Because we vacate the Court of Appeals’ judgment and remand the case for further proceedings for the court to consider whether a writ of mandamus should have issued, we need not decide whether the Vice President also could have appealed the District Court’s or
Respondents’ argument that the mandamus petition was barred by laches does not withstand scrutiny. Laches might bar a petition for a writ of mandamus if the petitioner “slept upon his rights . . . , and especially if the delay has been prejudicial to the [other party], or to the rights of other persons,” Chapman v. County of Douglas,
We do not accept, furthermore, respondents’ argument that laches should apply because the motions filed by the Government following the District Court’s denial of its motion to dismiss amounted to little more than dilatory tactics to “delay and obstruct the proceedings.” Brief for Respondent Sierra Club 23. In light of the drastic nature of mandamus and our precedents holding that mandamus may not issue so long as alternative avenues of relief remain available, the Government cannot be faulted for attempting to resolve the dispute through less drastic means. The law does not put litigants in the impossible position of having to exhaust alternative remedies before petitioning for mandamus, on the one hand, and having to file the mandamus petition at the earliest possible moment to avoid laches, on the
Ill
We now come to the central issue in the case — whether the Court of Appeals was correct to conclude it “ha[d] no authority to exercise the extraordinary remedy of mandamus,”
The common-law writ of mandamus against a lower court is codified at 28 U. S. C. § 1651(a): “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” This is a “drastic and extraordinary” remedy “reserved for really extraordinary causes.” Ex parte Fahey,
As the writ is one of “the most potent weapons in the judicial arsenal,” id., at 107, three conditions must be satisfied before it may issue. Kerr v. United States Dist. Court for Northern Dist. of Cal,
Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus, notwithstanding the District Court’s denial of the motion for certification, might present different considerations. Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders. The mandamus petition alleges that the orders threaten “substantial intrusions on the process by which those in closest operational proximity to the President advise the President.” App. 343. These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise. It is well established that “a President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ‘ordinary individual.’” United States v. Nixon,
These separation-of-powers considerations should inform a court of appeals’ evaluation of a mandamus petition involving the President or the Vice President. Accepted mandamus standards are broad enough to allow a court of appeals to prevent a lower court from interfering with a coequal branch’s ability to discharge its constitutional responsibilities. See Ex parte Peru, supra, at 587 (recognizing jurisdiction to issue the writ because “the action of the political arm of the Government taken within its appropriate sphere [must] be promptly recognized, and . . . delay and inconvenience of a prolonged litigation [must] be avoided by prompt termination of the proceedings in the district court”); see also Clinton v. Jones, supra, at 701 (“We have recognized that ‘[e]ven when a branch does not arrogate power to itself ... the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties’ ” (quoting Loving v. United States,
The Court of Appeals dismissed these separation-of-powers concerns. Relying on United States v. Nixon, it held that even though respondents’ discovery requests are overbroad and “go well beyond FACA’s requirements,” the Vice President and his former colleagues on the NEPDG “ ‘shall bear the burden’ ” of invoking privilege with narrow specificity and objecting to the discovery requests with “ ‘detailed precision.’ ”
This analysis, however, overlooks fundamental differences in the two cases. Nixon cannot bear the weight the Court of Appeals puts upon it. First, unlike this case, which concerns respondents’ requests for information for use in a civil suit, Nixon involves the proper balance between the Executive’s interest in the confidentiality of its communications and the “constitutional need for production of relevant evidence in a criminal proceeding.” Id., at 713. The Court’s decision was explicit that it was “not... concerned with the balance between the President’s generalized interest in confidentiality and the need for relevant evidence in civil litigation .... We address only the conflict between the President’s assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials.” Id., at 712, n. 19.
The Court also observed in Nixon that a “primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions.” Id., at 707. Withholding materials from a tribunal in an ongoing criminal case when the information is necessary to the court in carrying out its tasks “conflict[s] with the function of the courts under Art. III.” Ibid. Such an impairment of the “essential functions of [another] branch,” ibid., is impermissible. Withholding the information in this case, however, does not hamper another branch’s ability to perform its “essential functions” in quite the same way. Ibid. The District Court ordered discovery here, not to remedy known statutory violations, but to ascertain whether FACA’s disclosure requirements even apply to the NEPDG in the first place. Even if FACA embodies important congressional objectives, the only consequence from re
A party’s need for information is only one facet of the problem. An important factor weighing in the opposite direction is the burden imposed by the discovery orders. This is not a routine discovery dispute. The discovery requests are directed to the Vice President and other senior Government officials who served on the NEPDG to give advice and make recommendations to the President. The Executive Branch, at its highest level, is seeking the aid of the courts to protect its constitutional prerogatives. As we have already noted, special considerations control when the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated. This Court has held, on more than one occasion, that “[t]he high respect that is owed to the office of the Chief Executive ... is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery,” Clinton,
Finally, the narrow subpoena orders in United States v. Nixon stand on an altogether different footing from the overly broad discovery requests approved by the District Court in this case. The criminal subpoenas in Nixon were required to satisfy exacting standards of “(1) relevancy; (2) admissibility; (3) specificity.”
In contrast to Nixon's subpoena orders that “precisely identified” and “specific[ally] . . . enumerated” the relevant materials, id., at 688, and n. 5, the discovery requests here, as the panel majority acknowledged, ask for everything under the sky:
“1. All documents identifying or referring to any staff, personnel, contractors, consultants or employees of the Task Force.
“2. All documents establishing or referring to any Sub-Group.
“3. All documents identifying or referring to any staff, personnel, contractors, consultants or employees of any Sub-Group.
“4. All documents identifying or referring to any other persons participating in the preparation of the Report or in the activities of the Task Force or any Sub-Group.
“5. All documents concerning any communication relating to the activities of the Task Force, the activities of any Sub-Groups, or the preparation of the Report....
“6. All documents concerning any communication relating to the activities of the Task Force, the activities of Sub-Groups, or the preparation of the Report between any person .. . and [a list of agencies].” App. 220-221.
The preceding excerpt from respondents’ “First Request for Production of Documents,” id., at 215 (emphasis added),
The Government, however, did in fact object to the scope of discovery and asked the District Court to narrow it in some way. Its arguments were ignored. See App. 167, 181-183 (arguing “this case can be resolved far short of the wide-ranging inquiries plaintiffs have proposed” and suggesting alternatives to “limi[t]” discovery); id., at 232 (“Defendants object to the scope of plaintiffs’ discovery requests and to the undue burden imposed by them. The scope of plaintiffs’ requests is broader than that reasonably calculated to lead to admissible evidence”); id., at 232, n. 10 (“We state
Contrary to the District Court’s and the Court of Appeals’ conclusions, Nixon does not leave them the sole option of inviting the Executive Branch to invoke executive privilege while remaining otherwise powerless to modify a party’s overly broad discovery requests. Executive privilege is an extraordinary assertion of power “not to be lightly invoked.” United States v. Reynolds,
In recognition of these concerns, there is sound precedent in the District of Columbia itself for district courts to explore other avenues, short of forcing the Executive to invoke privilege, when they are asked to enforce against the Executive Branch unnecessarily broad subpoenas. In United States v. Poindexter,
As we discussed at the outset, under principles of mandamus jurisdiction, the Court of Appeals may exercise its power to issue the writ only upon a finding of “exceptional circumstances amounting to a judicial ‘usurpation of power,’ ” Will,
V
In the absence of overriding concerns of the sort discussed in Schlagenhauf,
The judgment of the Court of Appeals for the District of Columbia is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Concurrence Opinion
concurring.
Broad discovery should be encouraged when it serves the salutary purpose of facilitating the prompt and fair resolution of concrete disputes. In the normal case, it is entirely appropriate to require the responding party to make particularized objections to discovery requests. In some circumstances, however, the requesting party should be required to assume a heavy burden of persuasion before any discovery is allowed. Two interrelated considerations support taking that approach in this case: the nature of the remedy respondents requested from the District Court, and the nature of the statute they sought to enforce.
As relevant here, respondents, Judicial Watch, Inc., and Sierra Club, sought a writ of mandamus under 28 U. S. C. § 1361. Mandamus is an extraordinary remedy, available to “a plaintiff only if... the defendant owes him a clear nondis-cretionary duty.” Heckler v. Ringer,
Thus, granting broad discovery in this case effectively prejudged the merits of respondents’ claim for mandamus relief — an outcome entirely inconsistent with the extraordinary nature of the writ. Under these circumstances, instead of requiring petitioners to object to particular discovery requests, the District Court should have required respondents to demonstrate that particular requests would tend to establish their theory of the case.
Notes
A few interrogatories or depositions might have determined, for example, whether any non-Government employees voted on NEPDG recommendations or drafted portions of the committee’s report. In my view, only substantive participation of this nature would even arguably be sufficient to warrant classifying a non-Government employee as a defacto committee member.
Concurrence Opinion
with whom Justice Scalia joins, concurring in part and dissenting in part.
I agree that “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. United States Dist. Court for Northern Dist. of Cal,
One need look no further than the District Court’s opinion to conclude respondents’ right to relief in the District Court was unclear and hence that mandamus would be unavailable. Indeed, the District Court acknowledged this Court’s recognition “that applying FACA to meetings among Presidential advisors 'presentís] formidable constitutional difficulties.’” Judicial Watch, Inc. v. National Energy Policy Dev. Group,
Putting aside the serious constitutional questions raised by respondents’ challenge, the District Court could not even
Although the District Court might later conclude that FACA applies to the NEPDG as a statutory matter and that such application is constitutional, the mere fact that the District Court might rule in respondents’ favor cannot establish the clear right to relief necessary for mandamus. Otherwise, the writ of mandamus could turn into a freestanding cause of action for plaintiffs seeking to enforce virtually any statute, even those that provide no such private remedy.
Because the District Court clearly, exceeded its authority in this case, I would reverse the judgment of the Court of Appeals and remand the case with instruction to issue the writ.
1 join Parts I, II, III, and IV of the Court’s opinion.
Dissenting Opinion
with whom Justice Souter joins, dissenting.
The Government, in seeking a writ of mandamus from the Court of Appeals for the District of Columbia, and on brief to this Court, urged that this case should be resolved without any discovery. See App. 188-184, 339; Brief for Petitioners 45; Reply Brief 18. In vacating the judgment of the Court of Appeals, however, this Court remands for consideration whether mandamus is appropriate due to the overbreadth of the District Court’s discovery orders. See ante, at 372-37.3, 387-390. But, as the Court of Appeals observed, it appeared that the Government “never asked the district court to narrow discovery.” In re Cheney,
I
A
The discovery at issue here was sought in a civil action filed by respondents Judicial Watch, Inc., and Sierra Club.
The discovery plan drawn by Judicial Watch and Sierra Club was indeed “unbounded in scope.” Ante, at 388; accord
Despite the absence from this “flurry of activity,” ante, at 379, of any Government motion contesting the terms of the discovery plan or proposing a scaled-down substitute plan, see
True, the Government disputed the definition of the term “meeting” in respondents’ interrogatories, and stated, in passing, that “discovery should be [both] limited to written interrogatories” and “limited in scope to the issue of membership.” Id., at 179, 181, 233.
Further sounding the Government’s leitmotif, in a hearing on the proposed discovery plan, the District Court stated that the Government “didn’t file objections” to rein in discovery “because [in the Government’s view] no discovery is appropriate.” Id., at 192; id., at 205 (same). Without endeavoring to correct any misunderstanding on the District Court’s part, the Government underscored its resistance to any and all discovery. Id., at 192-194; id., at 201 (asserting that respondents are “not entitled to discovery to supplement [the administrative record]”). And in its motion for a protective order, the Government similarly declared its unqualified opposition to discovery. See Memorandum in Support of Defendants’ Motion for a Protective Order and for Reconsideration, C. A. Nos. 01-1530 (EGS), 02-631 (EGS), p. 21 (D. D. C., Sept. 3, 2002) (“[Petitioners] respectfully request that the Court enter a protective order relieving them of any obligation to respond to [respondents’] discovery [requests].” (emphasis added)); see
“I told the government, if you have precise constitutional objections, let me know what they are so I can determine whether or not this [discovery] plan is appropriate, and ... you said, well, it’s unconstitutional, without elaborating. You said, because Plaintiffs’ proposed discovery plan has not been approved by the court, the Defendants are not submitting specific objections to Plaintiffs’ proposed request____My rule was, if you have objections, let me know what the objections are, and you chose not to do so.” App. 205.
B
Denied § 1292(b) certification by the District Court, the Government sought a writ of mandamus from the Court of Appeals. See id., at 339-365. In its mandamus petition, the Government asked the appellate court to “vacate the discovery orders issued by the district court, direct the court to decide the case on the basis of the administrative record and such supplemental affidavits as it may require, and direct that the Vice President be dismissed as a defendant.” Id., at 364-365. In support of those requests, the Government again argued that the case should be adjudicated without discovery: “The Constitution and principles of comity preclude discovery of the President or Vice President, especially without a demonstration of compelling and focused countervailing interest.” Id., at 360.
The Court of Appeals acknowledged that the discovery plan presented by respondents and approved by the District
The Court of Appeals stressed that the District Court could accommodate separation-of-powers concerns short of denying all discovery or compelling the invocation of executive privilege. See
II
“This Court repeatedly has observed that the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp.,
Throughout this litigation, the Government has declined to move for reduction of the District Court’s discovery order to accommodate separation-of-powers concerns. See supra, at 398-402. The Court now remands this case so the Court of Appeals can consider whether a mandamus writ should issue ordering the District Court to “explore other avenues, . short of forcing the Executive to invoke privilege,” and, in particular, to “narrow, on its own, the scope of [discovery].” Ante, at 390. Nothing in the District Court’s orders or the Court of Appeals’ opinion, however, suggests that either of those courts would refuse reasonably to accommodate separation-of-powers concerns. See supra, at 397, 398, 401-402, and this page. When parties seeking a mandamus writ decline to avail themselves of opportunities to obtain relief from the District Court, a writ of mandamus ordering the same relief — i. e., here, reined-in discovery — is surely a doubtful proposition.
The District Court, moreover, did not err in failing to narrow discovery on its own initiative. Although the Court cites United States v. Poindexter,
The Court of Appeals also concluded, altogether correctly in my view, that it lacked ordinary appellate jurisdiction over the Vice president’s appeal. See
Government agencies had produced some relevant documents in related Freedom of Information Act litigation. See
Section 1292(b) of Title 28 allows a court of appeals, “in its discretion,” to entertain an appeal from an interlocutory order “[w]hen a district judge . . . shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”
On limiting discovery to the issue of membership, the Court of Appeals indicated its agreement. See
According to the Government, “24 boxes of materials [are] potentially responsive to [respondents'] discovery requests____The documents identified as likely to be responsive from those boxes ... are contained in approximately twelve boxes.” App. 282-283. Each box “requires one to two attorney days to review and prepare a rough privilege log. Following that review, privilege logs must be finalized. Further, once the responsive emails are identified, printed, and numbered, [petitioners] expect that the privilege review and logging process [will] be equally, if not more, time-consuming, due to the expected quantity of individual emails.” Id., at 284.
The agency petitioners, in responses to interrogatories, gave rote and hardly illuminating responses refusing “on the basis of executive and deliberative process privileges” to be more forthcoming. See, e. g., Defendant Department of Energy’s Response to Plaintiffs’ First Set of Interroga
The Court suggests that the appeals court “labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government’s separation-of-powers objections.” Ante, at 391. The Court of Appeals, however, described the constitutional concern as “hypothetical,” not merely because no executive privilege had been asserted, but also in light of measures the District Court could take to “narrow” and “carefully foeu[s]” discovery. See
The Court also questions the District Court’s invocation of the federal mandamus statute, 28 U. S. C. § 1361, which provides that “[t]he district courts shall have original jurisdiction of any action 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.” See ante, at 390-391;
Justice Thomas urges that respondents cannot obtain § 1361 relief if “wide-ranging discovery [is needed] to prove that they have any right to relief.” Ante, at 395 (opinion concurring in part and dissenting in part) (emphasis in original). First, as the Court of Appeals recognized, see supra, at 402-403; infra, at 405, should the Government so move, the District Court could contain discovery so that it would not be “wide-ranging.” Second, all agree that an applicant seeking a § 1361 mandamus writ must show that “the [federal] defendant owes him a clear nondiscre-tionary duty.” Heckler v. Ringer,
While I agree with the Court that an interlocutory appeal may become appropriate at some later juncture in this litigation, see ante, at 391, I note that the decision whether to allow such an appeal lies in the first instance in the District Court’s sound discretion, see 28 U. S. C. § 1292(b); supra, at 398, n. 3.