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.
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.
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 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
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
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 ...