## Facts

- The President created the National Energy Policy Development Group (NEPDG) within the Executive Office of the President to advise on national energy policy and named the Vice President as chair.
- NEPDG’s formal membership consisted of federal officials, including cabinet secretaries and other executive branch personnel.
- Judicial Watch and the Sierra Club sued seeking NEPDG records and alleged that private participants effectively made NEPDG an “advisory committee” subject to the Federal Advisory Committee Act (FACA).
- The plaintiffs sought broad discovery into NEPDG’s composition and operations, including information and materials connected to the Vice President and internal executive communications.
- The district court permitted expansive discovery and rejected threshold arguments aimed at ending or sharply limiting the litigation.
- A prior D.C. Circuit panel denied mandamus relief; the Supreme Court vacated and remanded, directing greater sensitivity to separation-of-powers concerns and the burdens of discovery on the Executive.
- On remand, the D.C. Circuit reheard the matter en banc to decide whether extraordinary relief was warranted.

## Issues

1. Whether mandamus should issue to prevent discovery that would intrude on executive branch deliberations and create separation-of-powers harm.
2. Whether, as framed by the requested discovery and relief, applying FACA to NEPDG would raise serious constitutional problems that required narrowing constructions and warranted dismissal.
3. Whether the Executive had an adequate alternative remedy to mandamus, such as litigating through discovery and asserting privilege document-by-document.

## Decision

- The en banc D.C. Circuit granted the petition for a writ of mandamus.
- The court ordered the district court to dismiss the FACA action.
- The court concluded that the discovery orders were overly sweeping and threatened unnecessary intrusion into the Executive’s confidential advisory processes.
- The court held that forcing high-level executive officials to defend against intrusive discovery and assert privilege document-by-document would itself inflict separation-of-powers injury.
- The court determined that, read to avoid serious constitutional problems, FACA could not be applied in the manner the plaintiffs sought to regulate and expose the workings of this presidential advisory group.

## Legal Principles

- Mandamus is an extraordinary remedy, but it may be available to confine a lower court to the lawful exercise of jurisdiction or to correct a clear abuse of discretion causing irreparable harm, including separation-of-powers harm.
- In civil litigation targeting senior executive officials, courts must apply discovery rules with heightened caution to avoid unnecessary intrusion into executive functions and confidential deliberations.
- When statutory application would create serious constitutional difficulties, courts should adopt a constitutionally avoiding construction where fairly possible.
- Compelled discovery into presidential and vice-presidential advisory processes can itself constitute a cognizable separation-of-powers injury, independent of any later privilege determinations.
- Where intrusive discovery is premised on a legally insufficient entitlement under the statute as properly construed, dismissal—rather than incremental discovery management—may be appropriate.

## Conclusion

The en banc D.C. Circuit used mandamus to halt and terminate FACA litigation that would have required broad discovery into a presidential advisory group’s internal operations, holding that separation-of-powers concerns and constitutional avoidance foreclosed the plaintiffs’ theory and justified dismissal before discovery could further intrude on executive deliberations.


In re Cheney, 406 F.3d 723 (D.C. Cir. 2005)