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JUDICIAL WATCH v. NATIONAL ENERGY POLICY DEV.

November 26, 2002

JUDICIAL WATCH, INC., PLAINTIFF,
V.
NATIONAL ENERGY POLICY DEVELOPMENT GROUP, DEFENDANT SIERRA CLUB, PLAINTIFF, V. VICE PRESIDENT RICHARD CHENEY, ET AL. DEFENDANTS



The opinion of the court was delivered by: Emmet G. Sullivan, District Judge.

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*fn1 have recently filed with the 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, 418 U.S. 683, 690-92, 94 S.Ct. 3090, 3098-99 (1974). This narrow rule was adopted by the Nixon Court to avoid the "unseemly" circumstance in which the President of the United States would be forced to disobey the Judicial Branch to obtain appellate review of its orders. Id. at 692.

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 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, 891 F.2d 332, 335 n. 5 (D.C. Cir. 1989). Through § 1292(b), "Congress . . . chose to confer on District Courts first line discretion" and "circumscribed authority to certify for immediate appeal interlocutory orders deemed pivotal and debatable." Swint v. Chambers County Comm'n, 514 U.S. 35, 46, 47, 115 S.Ct. 1203, 1210 (1995).

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, 930 F.2d 1202, 1206 (7th Cir. 1991). One District Court within this Circuit has held:

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 ...

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