MEMORANDUM OPINION AND ORDER
Pending before this Court is non-agency defendants’ motion for certification of interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Upon careful consideration of this motion, the responses and reply thereto, the applicable statutory and case law, and for the following reasons, the defendants’ motion is hereby DENIED.
I. BACKGROUND
Defendants Vice-President Richard B. Cheney, the National Energy Policy Development Group (“NEPDG”), Andrew Lundquist, Joshua Bolten,. and Larry Lindsay 1 have recently filed with the *18 United States Court of Appeals for the District of Columbia Circuit a series of appeals of this Court’s July 11, 2002, August 2, 2002, September 9, 2002, October 17, 2002, and November 1, 2002 Orders.
On November 7, 2002, defendant Vice-President Richard Cheney filed a notice of appeal of this Court’s November 1, 2002, October 17, 2002, and September 9, 2002 Orders approving discovery of him by plaintiffs. These Orders,
inter alia,
require him to produce non-privileged documents responsive to plaintiffs’ First Request for Production of Documents or file detailed and precise objections to particular requests with the Court. The defendant was also directed to produce a privilege log identifying with specificity the documents or categories of documents withheld pursuant to an asserted privilege, as well as the grounds therefor. Mr. Cheney appeals these Orders as “final orders” under what defendants have dubbed the “Nixon rule.” Defs.’ Mot. at 3. Defendant premises the Court of Appeals’ jurisdiction for such an appeal on the Supreme Court’s ruling in
United States v. Nixon
deeming a discovery Order denying a motion to quash a subpoena
duces tecum
directed to the President of the United States a “final order” for the purpose of bringing its appeal within the reach of 28 U.S.C. § 1291.
United States v. Nixon,
The so-called “Nixon rule” appears to have been applied only in United States v. Nixon, and defendants seem to concede that it has never been applied to the Office of the Vice-President. See Defs.’ Reply in Supp. of Mot. for a Stay at 3. Mr. Cheney argues for an extension of Nixon’s holding to this case, contending that the underlying rationale applies with equal force to the Vice-President, rendering this Court’s discovery Orders “final orders” subject to appellate review pursuant to § 1291, at least as applied to Vice-President Cheney. Id.
Additionally, on November 12, 2002, all five non-agency defendants filed an Emergency Petition for Writ of Mandamus with the Circuit Court, seeking review of this Court’s Orders authorizing discovery of them. Defendants allege that these Orders reflect “clear error” on this Court’s part, and urge the Court of Appeals to order this Court to dismiss Vice President Cheney from this action, and to decide this case on the basis of the administrative record alone, without the benefit of further discovery. Emergency Mot. for Stay at 2; Emergency Pet. for Writ of Mandamus at 1, 8.
Notwithstanding this flurry of appellate activity, non-agency defendants have also filed a motion before this Court to certify three issues for interlocutory appeal to the United States Court of Appeals for the D.C. Circuit. Defendants argue that they are entitled to pursue all three avenues of appeal, but urge this Court to grant their motion for certification pursuant to § 1292(b) in order to afford the Court of Appeals “more options to consider in determining whether and how ... it is going to take the case, because interlocutory appeal would be a more traditional way for the Court to examine the issues rather than the Nixon theory or mandamus.” Tr. 11/13/02 Hr’g. at 28:22— 29:5; Defs.’ Reply in Supp. of Mot. for Stay at 2-4. However, as plaintiffs correctly point out, convenience alone is not a *19 ground for granting certification under § 1292(b). See Tr. 11/13/02 Hr’g. at 33:11 — 33:17. A party must ■ establish a factual and legal predicate under the standard set forth in 28 U.S.C. § 1292(b) in order for a question to be properly certified for interlocutory appeal, a prerequisite defendants have failed to satisfy in this case.
II. Motion for certification pursuant to 28 U.S.C. § 1292(b)
Defendants contend that they are entitled to certification of this Court’s July 11, 2002, August 2, 2002, September 9, 2002, and October 17, 2002 Orders for immediate appeal pursuant to 28 U.S.C. § 1292(b) to resolve the following questions of law:
1) whether the Federal Advisory Committee Act (“FACA”) is enforceable against the Vice President through an action for mandamus;
2) whether a private plaintiff may obtain discovery of the Vice President and other non-agency defendants in a civil case “absent any showing of need;”
3) whether, “in light of principles of judicial review established by the Administrative Procedure Act (‘APA’), and in light of the constitutional concerns raised by plaintiffs’ suit and requests for discovery, this case should be dismissed or resolved on the basis of the administrative record.”
Defs.’ Mot. for Certification at 2.
A. Standard of Review
A District Court may certify an interlocutory order for immediate appeal if it concludes that it
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 litigation.
28 U.S.C. § 1292(b);
Trout v. Garrett,
In an opinion relied'upon by both parties, the Seventh Circuit 'described a “controlling” question of law as one which
will determine the outcome or even the future course of the litigation ... a question is controlling, even though its decision might not lead to reversal on appeal, if interlocutory reversal might save time for the district court, and time and expense for the litigants.
Johnson v. Burken,
Under section 1292(b), a' controlling question of law is one that would require reversal if decided incorrectly or that could materially affect the course of litigation with resulting .savings, of the court’s or the parties’ resources.
In re Vitamins Antitrust Litigation,
Civ. A. No. 99-197,
The threshold for establishing the “substantial ground for difference of opinion” with respect to a “controlling question of law” required for certification pursuant to § 1292(b) is a high one. The parties cite to only one -instance within this Circuit in which a court found that it had been met, based on the existence of an apparent inconsistency between a position taken by one panel of the Court of Appeals when remanding to the District Court and that set forth in a prior Circuit opinion.
See Johnson v. Wash. Metro Area Trans. Auth.,
Mere disagreement, even if vehement, with a court’s ruling on a motion to dismiss does not establish a “substantial ground for difference of opinion” sufficient to satisfy the statutory requirements for an interlocutory appeal.
First Am. Corp. v. Al-Nahyan,
A party seeking certification pursuant to § 1292(b) must meet a high standard to overcome the “strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.”
United States v. Nixon,
B. Enforcement of FACA against Vice-President through mandamus relief
Defendants contend that “it is appropriate to allow the court of appeals at this time to determine” the question of whether FACA is enforceable against the Vice President by way of an action for mandamus because early dismissal of the Vice President from this action would eliminate thorny constitutional issues posed by his presence. See Defs.’ Mot. for Certification at 7. Defendants further argue that dismissal of the Vice-President, in turn, would “materially advance” the litigation, thus rendering this question a “controlling” one for the purposes of § 1292(b) analysis under the case law cited by both parties. Id.
As an initial matter, while dismissal of the Vice-President at this point in the litigation would certainly bring the litigation to a swift conclusion as to this particu *21 lar defendant, it does not appear that it would eliminate constitutional concerns from this case altogether, nor materially advance the litigation. Defendants have continuously and vehemently contended that discovery is inappropriate as to all non-agency defendants, and not just the Vice-President, due to the separation of powers concerns defendants maintain are triggered by any and all discovery of the National Energy Policy Development Group (“NEPDG”) and other non-agency defendants. Assuming the non-agency defendants other than the Vice-President do not change their position in this regard, dismissal of the Vice-President as a defendant from this case would neither remove nor expedite the resolution of the complex constitutional issues presented.
Moreover, because the Orders defendants seek to certify for appeal concern only discovery reasonably calculated to ascertain whether FACA is even applicable here, it is premature to characterize the question of whether this Court can grant
mandamus
relief ordering compliance with FACA as a “controlling” question of law. Additionally, the Court’s July 11, 2002 Memorandum Opinion & Order did not resolve the question of whether
mandamus
relief was available against the Vice-President for a violation of FACA.
Judicial Watch v. Nat’l Energy Policy Dev. Group,
Even if the issue were before the Court at this stage of the litigation, it is quite clear that the question defendants seek to certify is not one as to which, at least in the hypothetical presented in the absence of a more developed factual record, there is “substantial ground for difference of opinion.”
See Judicial Watch v. Nat’l Energy Policy Dev. Group,
Defendants’ reliance on cases from other Circuits holding
mandamus
relief to be unavailable where a statute creating a non-discretionary duty does not provide for a private right of action does not change this result.
See
Defs.’ Mot. for Certification at 8. It is not unusual that Circuits differ with respect to the proper resolution of legal issues deemed controlling in a particular case. If interlocutory appeals were to be granted in every such instance, our system’s strong preference for appeal only upon final judgment would be severely undermined. Indeed, in view of this Circuit’s opinion in
Chamber of Commerce v. Reich,
Defendants’ citation to the recently decided case of
Gonzaga University v. Doe
for the proposition that
mandamus
relief is unavailable as a matter of law in this case is equally unpersuasive. See Tr. 11/13/02 Hr’g. at 28:17 — 28:21; Defs.’ Mot. for Certification at 8. In
Gonzaga,
the U.S. Supreme Court clarified its precedent with respect to enforcement, through actions brought under 42 U.S.C. § 1983, of conditions placed on receipt of federal funding in federal statutes enacted pursuant to the Spending Clause.
Gonzaga Univ. v. Doe,
Furthermore, the Supreme Court opinion in
Gonzaga,
at its core, concerned the entirely distinct question of how courts should go about ascertaining whether a personal right triggering the application of 42 U.S.C. § 1983 exists.
Gonzaga Univ. v. Doe,
Defendants have failed to establish the existence of a “substantial ground for difference of opinion” with respect to the question of whether the federal mandamus statute offers a means by which FACA could be enforced against the Vice President. Accordingly, certification of this question is inappropriate under § 1292, given the conspicuous absence of one of the policy considerations favoring application of the exceptional procedure of interlocutory review prior to final judgment.
C. Availability of Discovery “Absent Any Showing of Need"
Defendants also contend that the second question for which they seek certification, “whether a private plaintiff may obtain discovery ... absent any showing of need,” is “substantial and controlling,” and therefore meets the standard for certification under § 1292(b). Once again, defendants fail to establish the factual and legal predicates for interlocutory appeal of this Court’s discovery Orders pursuant to § 1292(b).
As an initial matter, the parties disagree as to whether a District Court’s discovery orders are, as a general rule, the proper subject of an interlocutory appeal. Plaintiff Sierra Club contends that they are not, relying on the Eighth Circuit’s opinion in
White v. Nix,
which suggests that discovery orders “generally never will involve a controlling question of law.”
White v. Nix,
This Court does not dispute that defendants’ constitutional challenges to the application of FACA and the APA in this case are “serious.”
See Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
However, § 1292 jurisprudence does not appear to equate any issue susceptible to a separation of powers argument with a “controlling” question of law as that language is used in § 1292(b). If an argument, even one that invokes separation of powers doctrine, is without support in existing case law, then the questions of law raised thereby are neither substantial nor
*24
controlling for the purposes of § 1292(b) analysis.
See Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
Interlocutory appeal is reserved for “extraordinary cases,” and not every case presenting constitutional questions, nor every case permitting discovery requests to be made of Executive Officers, meets this admittedly high standard.
See Clinton v. Jones,
The Circuit’s reasoning in EOP is applicable to the motion currently before this Court. In both cases the Executive Branch contends that it is not properly subject to a statute, and that discovery in an action brought to enforce the statute is improper. See id. at 21. In EOP, defendants had asserted privileges which both the District and Circuit Courts found to be without merit. Id. at 22. In the present case, defendants have refused to even review responsive documents and make specific objections and assertions of privilege. Notwithstanding this difference in the underlying facts, in both cases defendants offered “no argument that [they] are even entitled to the privileges.” Id. at 23-24. Accordingly, these cases are sufficiently analogous for this Court to conclude that there are no “extraordinary circumstances” here requiring resolution on interlocutory appeal.
Additionally, defendants have not succeeded in establishing that there is a “substantial ground for difference of opinion” on the question of whether any discovery requests can be made of presidential advisors or the Vice-President without first showing “any need.” As this Court has repeatedly stated, defendants mis-characterize the authority they cite for the proposition that a private party seeking discovery from the Vice-President and presidential advisors must first show a “compelling need,” beyond the “mere allegations” sufficient to survive a motion to dismiss, for the information sought. After considerable briefing by all parties, this Court concludes that there is no legal precedent for defendants’ position that the discovery procedures adopted by this Court place an unconstitutional burden on them. Thus, there can be no “substantial ground for difference of opinion” justifying interlocutory appeal on this issue. Moreover, defendants appear to have conceded, both at oral argument on this motion and in their recent briefings, that the real difference of opinion lies between the defendants themselves and the Court, rather than within precedential authority.
*25
Tr. 11/13/02 Hr’g. at 30:21 — 30:25. As noted by the District Court in
Al-Nah-yan,
“[t]he mere claim that a decision has been wrongly decided is not enough to justify an interlocutory appeal.”
First Am. Corp. v. Al-Nahyan,
Defendants argue that this Court has failed to consider two D.C. District Court opinions which create the requisite “substantial difference of opinion” on the question of whether executive privilege must first be asserted before a party seeking discovery is required to show “need.” Defs.’ Reply at 2-4, 5 citing
United States v. Poindexter,
Equally erroneous is the argument of counsel for former President Reagan and Department of Justice counsel acting on behalf of President George Bush ... [who] assert that, in addition to showings of relevancy, materiality, and other incidents of admissibility, defendant is required to demonstrate that the testimony of the former President is central to his defense, and that a substitute from any other source would be inadequate.. .the precedents cited for this proposition do not support it. The proposed standard would be extraordinary in a case where executive privilege has been invoked; it is particularly so in a non-privilege situation. [emphasis added].
Id. at 146-47. Once again, the defendants have misrepresented precedent in order to fit it within their theory that a party must make some showing of “need” before an Executive Branch defendant should be even required to review documents responsive to a Court-approved discovery request, and to determine if viable grounds for assertion of a privilege exists.
The most recent
Poindexter
opinion sets forth the appropriate standard to be applied when deciding whether a criminal defendant’s
subpoena
of both former and current Presidents to testify at trial should be honored.
Poindexter II,
While the former President has not claimed executive privilege, he will only be compelled to testify at the trial of this case if the Court is satisfied that his testimony would be material as tested by a meticulous standard, as well as being necessary in the sense of being a more logical and more persuasive source of evidence than alternatives that might be suggested, [emphasis added]
Id. at 147. The District Court reasoned that a contrary holding could infringe on the Executive Branch’s deliberative processes if the President could subsequently be compelled to testify “with frequency *26 and for non-essential or relatively trivial reasons.” Id. at 147-48. Further, because the testimony subpoenaed might involve both privileged and non-privileged conversations, the District Court was mindful of the potential consequences of establishing a rule effectively requiring the President to assert executive privilege with respect to all conversations in order to avoid being called to testify, particularly in light of the Supreme Court’s cautionary instruction that the executive privilege should not be “lightly invoked.” Id. at 148 (citing cases).
The circumstances before the court in
Poindexter II
are easily distinguishable, on several grounds, from those extant in this case. A decision by the District Court in
Poindexter II
to enforce a subpoena requiring the President to testify at a trial would be analogous to a decision in this case requiring defendants to produce forthwith all of the documents requested by plaintiffs. No such Order has been entered in this case. In fact, this Court has made it abundantly clear that it is not, at this stage, requiring production of any privileged documents. With respect to document production and responses to interrogatories, as opposed to subpoenas for live testimony, courts have approved, and this Court has adopted, procedures which allow the President and Executive Branch officials to first identify which documents are properly the subject of an invocation of executive privilege and which are not, and to produce the latter, but not the former.
See Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
Second, the implications of honoring a subpoena requiring the President to physically appear and testify before a Court are significant in terms of potential interference with the Presidential function, as noted by the
Poindexter II
opinion. Such a requirement is substantially different from an order requiring Executive Branch staff members to review documents responsive to a discovery request, identify those which are privileged, and produce non-privileged documents and a privilege log, a procedure approved by the Supreme Court.
See, e.g., Nixon v. Administrator of General Services,
In the first
Poindexter
opinion, addressing subpoenas for a President’s diaries and personal notes in a criminal prosecution, the District Court also did not, as defendants contend, require that the party seeking enforcement of the subpoena establish a “compelling need” for the documents before the subpoena could issue.
See Poindexter I,
The equivalent of this process has already occurred in this case, as demonstrated by the Court’s July 11, 2002 Order and its evaluation of plaintiffs proposed discovery plan.
See Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
Civ. A. No. 01-1530 (D.D.C. Aug. 8, 2002) (Order approving plaintiffs’ proposed discovery plan and setting forth discovery procedures); Tr. 08/02/02 Hr’g. at 19:1 — 19:3;
Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
Where, as here, “other than their interpretation” of cases, and citation to cases the court has found to be inapposite, defendants “have offered little to support their desired result and they have not persuaded the Court that conflicting authority exists on the issue presented” as applied to the relevant facts, interlocutory appeal pursuant to § 1292(b) has been held to be unwarranted.
See First Am. Corp. v. Al-Nahyan,
Moreover, in their motion for certification, defendants persist in conflating within the term “discovery” the notion of requiring production of documents and the far less drastic result of this Court’s Orders, which simply require that defendants produce non-privileged documents and make particularized assertions of privilege where appropriate.
See Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
This Court has already answered that question in the affirmative, in a manner consistent with existing authority, which establishes that the appropriate stage at which to require a party seeking discovery to demonstrate “need” arises only after the opposing party has asserted a privilege, even where that party is a member of the Executive Branch, up to and including the President of the United States.
Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
Therefore, by mischaracterizing the intent and effect of this Court’s Orders, defendants have created a legal question, for which they now seek certification, where none exists. Where “it is only against a mischaracterization of the Court’s holdings that the plaintiff can identify substantial ground for a difference of opinion,” a motion to certify under § 1292(b) is properly denied.
See Foster v. United States,
Finally, this Court’s discovery Orders would not require reversal if decided incorrectly, nor would such a finding materially alter the course of litigation.
See Johnson v. Burken,
Defendants’ contention that certification of this Court’s Orders for interlocutory appeal will materially advance this litigation necessarily assumes that they will prevail on appeal. This result is far from certain. As noted by one District Judge, “[wjhile certainly the ultimate termination of this litigation would be advanced if the Court of Appeals heard and sustained defendant’s defense at this time, the court is not of the opinion that this is a likely course of events. Therefore, the court will not invoke its discretionary authority to certify the issues decided in [its] Order to the Court of Appeals under section 1292(b).”
U.S. ex rel Hollander,
Defendants also assume that a ruling in their favor on all three issues at the Circuit level will result in dismissal of the action as to them, or at least relieve them of the burden of participating in discovery. However, a number of substantive questions were left unresolved by this Court’s July 11, 2002 Order which would require further litigation before this Court, with or without the benefit of discovery of non-agency defendants. See Tr. 11/13/02 Hr’g. at 33:23-24. In fact, a ruling favorable to *29 the defendants on this issue could conceivably result in more arduous proceedings for all parties, as the Court and .the parties struggle to find other ways of establishing whether or not the predicate facts for the application of FACA exist, and moving this litigation forward. Accordingly, defendants have not carried their burden of demonstrating that interlocutory appeal of this question at this point in time would materially advance the litigation as a whole.
D. Availability of discovery in action pursuant to the APA or mandamus statutes
The third question defendants seek to certify for interlocutory appeal concerns the availability of discovery under the APA or the federal
mandamus
statute. Defendants contend that it is “well settled” that judicial review pursuant to the APA must be limited to the administrative record absent “exceptional circumstances,” which only arise upon a “strong showing of bad faith or improper behavior” or “when the record is so bare that it prevents effective judicial review.” Defs.’ Mot. at 6, 8; Defs.’ Reply at 6, citing
Commercial Drapery Contractors, Inc. v. United States,
The question of the scope of permissible discovery in a mandamus or APA action is not controlling, and its resolution will not materially advance this litigation. As plaintiff Sierra Club correctly points out, if this Court has reached an incorrect conclusion under either the mandamus statute or the APA with respect to the propriety of limited discovery this case, then the Court of Appeals is free, upon review of final judgment, to make its ruling on the APA record alone, or to remand to this Court for such a review of plaintiffs’ claims. Additionally, as defendants have repeatedly stated, agency defendants, who are the only defendants against whom discovery was sought under the APA, have already provided plaintiffs with discovery, thereby rendering the question moot for purposes of interlocutory appeal. See Tr. 11/13/02 Hr’g. at 32:24 — 33:2.
Moreover, with respect to the proper scope of discovery in a
mandamus
action, defendants’ citation to their own arguments, without more, is simply insufficient to create the requisite “substantial ground for difference of opinion” on this issue. A litigant cannot create a “substantial ground for difference of opinion” justifying interlocutory appeal simply by arguing for a particular interpretation or extension of existing law. Furthermore, as defendants themselves concede, what authority they do rely on with respect to this question actually suggests that, under certain circumstances, discovery is appropriate in a
mandamus
action.
See
Defs.’ Objections to Plaintiffs’ Proposed Discovery Plan at 9 n. 6, citing
Conservation Law Foundation of New England, Inc. v. Clark,
As for the proper scope of discovery in an APA action, this Court has impliedly held that this case does in fact present the type of “exceptional circumstances” in which discovery beyond the administrative record is required to assist the Court in adjudicating the questions before it.
See Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
This conclusion is not inconsistent with the precedent cited by defendants in support of their contention that, as a general rule, no discovery beyond the administrative record should be permitted in an APA case.
See
Defs.’ Mot. at 8, Defs.’ Reply at 6. The facts of the case currently before this Court most certainly do not present circumstances analogous to those present in the APA cases cited by defendants, in which an agency’s adjudicative or legislative processes were the subject of judicial review.
See, e.g., Camp v. Pitts,
In light of the foregoing, it is clear that defendants have failed to carry their burden of establishing the existence of a “controlling question of law” as to which there is a “substantial ground for difference of opinion” with respect to the permissible scope of discovery under the federal mandamus statute or the APA. At most, they have argued for a different application of the law to the facts before the Court, and specifically for application of the general rule rather than the permissible exception. Defendants can advance such arguments on appeal after final judgment, but they have not established the basis for doing so at this time under § 1292(b).
With respect to all three questions for which they seek certification, defendants have not met their burden of establishing that exceptional circumstances justifying interlocutory appeal exist under the standard set forth by § 1292(b). Defendants have, throughout this litigation, zealously advocated in favor of, at best, a different interpretation, and at most, a dramatic extension of existing precedent with respect to each of the three legal questions they seek to certify. However, defendants’ conviction of the correctness of their position is insufficient to carry them over the high threshold posed by the standard governing certification for interlocutory appeal. Defendants have simply failed to establish the factual and legal predicates justifying interlocutory review pursuant to § 1292(b).
Accordingly, it is by the Court hereby
ORDERED that defendants’ motion for certification of interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is hereby DENIED.
Notes
. For ease of reference, these individuals will be referred to throughout this opinion as either "non-agency defendants,” or "defendants,” to distinguish them from the federal *18 agency defendants who have not joined in this motion.
. It is significant that this Circuit has commented, in
dicta,
that certification pursuant to § 1292 is particularly appropriate “when claims of immunity” are at issue.
McSurely
v.
McClellan,
.
In camera
inspection of documents to determine relevance and admissibility in a criminal prosecution
after
assertion of presidential privilege and presentation of sufficient evidence to rebut the presumption of privilege which attends such an assertion was approved by the U.S. Supreme Court in
United States
v.
Nixon,