## Facts

- The President created the National Energy Policy Development Group (NEPDG), chaired by the Vice President, to provide energy-policy advice and recommendations.
- After the NEPDG issued its final report and ended operations, Sierra Club and Judicial Watch sued, alleging the NEPDG violated the Federal Advisory Committee Act (FACA).
- Plaintiffs claimed that, although the NEPDG was formally composed of federal officials, private individuals participated in nonpublic meetings as de facto members, making FACA applicable.
- The suits sought declaratory and injunctive relief, including production of records allegedly subject to FACA’s disclosure and openness requirements.
- The district court allowed broad discovery into NEPDG membership and operations while deferring threshold questions, including whether FACA applied and whether applying FACA would raise separation-of-powers problems.
- The government sought mandamus from the D.C. Circuit to halt discovery, arguing the orders threatened confidentiality of high-level executive deliberations and imposed substantial burdens on senior officials.
- The D.C. Circuit denied mandamus and effectively required the Executive either to comply with discovery or to invoke executive privilege on a document-by-document basis (including a privilege log) before the court would address separation-of-powers objections.

## Issues

1. Whether a court of appeals may refuse to consider mandamus relief from discovery orders affecting senior Executive Branch officials unless the Executive first formally asserts executive privilege on a document-by-document basis.
2. Whether separation-of-powers concerns require more cautious treatment of broad civil discovery directed at a presidential advisory process when threshold legal questions remain unresolved.
3. What standards should guide mandamus review of discovery orders that risk disrupting Executive Branch functions.

## Decision

- The Supreme Court vacated the D.C. Circuit’s denial of mandamus and remanded for reconsideration.
- The Court held the D.C. Circuit erred by treating a formal executive-privilege invocation as a prerequisite to mandamus relief.
- The Court did not decide whether FACA applied to the NEPDG or whether FACA would be unconstitutional as applied.
- The Court instructed that mandamus analysis must account for separation-of-powers interests and the burdens and risks posed by expansive discovery into high-level executive deliberations.
- The Court indicated lower courts should consider narrower and less intrusive means and address threshold legal issues before permitting sweeping discovery.

## Legal Principles

- Mandamus is an extraordinary remedy, available only in exceptional circumstances, requiring a clear and indisputable right and the absence of adequate alternative means of relief.
- Separation-of-powers concerns can materially affect both the mandamus analysis and the permissible scope and sequencing of discovery when civil litigation targets senior Executive Branch officials and confidential advisory processes.
- Courts should not require the Executive to invoke executive privilege document-by-document as a precondition to obtaining mandamus review of discovery orders where the asserted harm is institutional intrusion and disruption.
- In disputes implicating presidential advisory communications, courts should consider resolving threshold statutory and constitutional-avoidance questions and should evaluate less intrusive alternatives before authorizing broad discovery.

## Conclusion

The Court required the D.C. Circuit to reassess whether mandamus should limit discovery into the Vice President’s energy task force, holding that separation-of-powers concerns demand a more protective approach and that mandamus review is not conditioned on a formal, itemized assertion of executive privilege.


Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004)