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WALKER v. CHENEY

December 9, 2002

DAVID M. WALKER, COMPTROLLER GENERAL OF THE UNITED STATES, PLAINTIFF,
V.
RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES AND CHAIR, NATIONAL ENERGY POLICY DEVELOPMENT GROUP, DEFENDANT.



The opinion of the court was delivered by: John D. Bates, United States District Judge

MEMORANDUM OPINION

This case raises compelling statutory and constitutional questions concerning the authority of the Comptroller General, and hence Congress, to require the Vice President to produce information relating to the President's decision-making on national energy policy. Each side casts its position in core constitutional terms invoking competing theories of the proper balance of power between the Legislative and Executive Branches, and insists that its opponent seeks to "work a revolution" in separation of powers principles. The case thus engenders a struggle between the political branches that is historically unprecedented and that transcends both the specific information sought and the political identity of the Legislative and Executive Branch players involved.

Ultimately, however, equally fundamental separation of powers concerns relating to the restricted role of the Article III courts in our constitutional system of government ordain the outcome here. The parties agree that no court has ever before granted what the Comptroller General seeks — an order that the President (or Vice President) must produce information to Congress (or the Comptroller General). Because the Comptroller General does not have the personal, concrete, and particularized injury required under Article III standing doctrine, either himself or as the agent of Congress, his complaint must be dismissed. Historically, the Article III courts have not stepped in to resolve disputes between the political branches over their respective Article I and Article II powers; this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.

I. BACKGROUND

David M. Walker, Comptroller General of the United States, brings this action against Richard B. Cheney, Vice President of the United States and Chair of the National Energy Policy Development Group ("NEPDG"), in furtherance of an investigation by the General Accounting Office ("GAO") into the NEPDG's composition and activities. The NEPDG was a task force established by President George W. Bush to gather information and make recommendations to him in the area of energy policy. The Comptroller General is the head of the GAO, and an agent of the Legislative Branch. Presently before the Court are the Comptroller General's motion for summary judgment and the Vice President's motion to dismiss.

A. The General Accounting Office and the Comptroller General

The GAO is "an instrumentality of the United States Government independent of the executive departments." 31 U.S.C. § 702(a) (2002). Congress created the GAO in 1921 in the belief that it "`needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations.'" See Bowsher v. Synar, 478 U.S. 714, 730 (1986) (quoting H. Mansfield, The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939)). Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. Indeed, the Supreme Court in Bowsher v. Synar expressly found that the Comptroller General is subservient to Congress. See 478 U.S. at 730. Under statute, the Comptroller General is granted broad authority to carry out investigations and evaluations for the benefit of Congress. For example, 31 U.S.C. § 712 requires the Comptroller General to

(1) investigate all matters related to the receipt, disbursement, and use of public money;
(2) estimate the cost to the United States Government of complying with each restriction on expenditures of a specific appropriation in a general appropriation law and report each estimate to Congress with recommendations the Comptroller General considers desirable;
(3) analyze expenditures of each executive agency the Comptroller General believes will help Congress decide whether public money has been used and expended economically and efficiently;
(4) make an investigation and report ordered by either House of Congress or a committee of Congress having jurisdiction over revenue, appropriations, or expenditures; and
(5) give a committee of Congress having jurisdiction over revenue, appropriations, or expenditures the help and information the committee requests.

Section 717(b) of title 31 additionally requires the Comptroller General to "evaluate the results of a program or activity the Government carries out under existing law — (1) on the initiative of the Comptroller General; (2) when either House of Congress orders an evaluation; or (3) when a committee of Congress with jurisdiction over the program or activity requests the evaluation."

Since 1980, the Comptroller General has been able to enforce these investigatory powers by bringing a civil action in the United States District Court for the District of Columbia to require "the head of [an] agency to produce a record." § 716(b)(2). The instant case is, however, the first time the Comptroller General has ever done so. Prior to instituting such an action, the Comptroller General must follow a specific set of procedures. First, he must make a formal written request to the head of the relevant agency stating the authority for inspecting the records and the reason for the inspection. § 716(b)(1). If he is not given an opportunity to inspect the records within 20 days, he may file a report with the President, the Director of the Office of Management and Budget ("OMB"), the Attorney General, the head of the agency, and Congress. Id. He must then wait another 20 days before initiating a lawsuit. § 716(b)(2)(A).

Even when he has followed these procedures, the Comptroller General cannot necessarily bring a suit. Section 716(d)(1) precludes a civil action for access to records in three situations: (A) where the records at issue relate to activities that have been designated by the President as foreign intelligence or counterintelligence activities; (B) where a specific statute exempts the records from disclosure; or (C) where, within 20 days of filing of the Comptroller General's report under § 716(b)(1), the President or the Director of OMB "certifies to the Comptroller General and Congress that a record could be withheld under section 552(b)(5) or (7) of title 5 and disclosure reasonably could be expected to impair substantially the operations of the Government."

Over the decades, the GAO has conducted thousands of investigations and evaluations of federal programs and activities, resulting in thousands of reports to Congress. See Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Mem. Supp. Summ. J.") at 15. The GAO's investigations have extended to White House operations issues, including personnel practices, alleged abuses of executive travel, and information management systems. GAO probes have also touched upon the Executive Branch's policy-related activities, with reviews of, for example, a White House task force to promote passage of permanent normal trade relations with China and an advisory committee established by President Reagan with respect to the H.I.V. epidemic. See id. at 15-16.

B. The Investigation of the NEPDG

President Bush also directed that the Department of Energy provide funding for the NEPDG to the maximum extent permitted by law and consistent with the need for funding determined by the Vice President after consultation with the Secretary of Energy. Id. at 2. In May 2001, the NEPDG issued a public report that recommended a set of policies, including proposed legislation, that was approved by the President as the National Energy Policy. See "Reliable, Affordable, and Environmentally Sound Energy for America's Future," Report of the National Energy Policy Development Group, available at www.whitehouse.gov/energy.

The GAO's investigation of the NEPDG was commenced on May 7, 2001, upon the request of two Congressmen, Representative John D. Dingell, Ranking Minority Member of the House Committee on Energy and Commerce, and Representative Henry A. Waxman, Ranking Minority Member of the House Committee on Government Reform. See Declaration of Margaret J. Reese ¶ 2. In an April 19, 2001, letter to the Comptroller General, Congressmen Dingell and Waxman had expressed concerns about the "conduct and composition of the task force" in light of "the apparent efforts of the task force to shield its membership and deliberations from public scrutiny." Compl., Ex. B at 1. They stated that it was their "understanding" that some of the task force's meetings had "included exclusive groups of non-governmental participants — including political contributors — to discuss specific policies, rules, regulations, and legislation." Id. They asked the Comptroller General to "undertake an investigation of the President's energy policy task force," including an examination of the identities of all task force members and staff, the attendees at task force meetings and the dates and locations of those meetings, and the criteria for determining which "non-federal entities" would be invited to participate at meetings. Id. at 1-2.

On May 8, 2001, GAO staff provided the Vice President's Counsel with a list of subjects in which it was interested, mirroring the specific items of interest identified by Congressmen Dingell and Waxman, and asked for a meeting with the Vice President's Counsel to discuss the investigation. Compl., Ex. C. The Vice President's Counsel responded on May 16, 2001, with a letter questioning the purpose and scope of the inquiry, as well as its legal basis. Compl., Ex. D at 1-2. He further asserted that the investigation raised constitutional concerns. Id. at 1.

Nevertheless, "[a]s a matter of comity between the legislative and executive branches," the Vice President's Counsel provided a copy of information that had been previously provided to Members of Congress in response to similar inquiries. Id. This information indicated that NEPDG staff members held meetings with individuals outside of government, but did not identify the names of NEPDG staff members, the names of persons in attendance at the NEPDG meetings or at meetings between staff and persons outside of the government, or the dates, locations, and subjects of any meetings with non-federal employees. See id. at Attachment 2.

Thereafter, on June 1, 2001, counsel for the GAO provided the Vice President's Counsel with a brief written explanation of the statutory basis for the GAO's authority to investigate, citing, inter alia, 31 U.S.C. § 712 and 717. Compl., Ex. F. Counsel for the GAO also submitted five follow-up questions relating to the NEPDG, and requested a meeting with the Vice President's Counsel and the Director of the NEPDG to discuss the GAO's review. Id.

Counsel for the Vice President responded in writing on June 7, 2001, raising specific challenges to the GAO's authority to investigate. Compl., Ex. G. "As a matter of comity," however, Counsel for the Vice President stated that he would seek information responsive to GAO's questions specifically related to costs incurred by the Vice President and the task force staff. Id. at 3. Documents relating to expenses incurred by the Office of the Vice President ("OVP") and the NEPDG staff were subsequently provided to the GAO, but according to the GAO, the documents failed to describe the nature or purpose of the listed expenditures. See Reese Decl. ¶ 6.

On June 22, 2001, counsel for the GAO sent to the Vice President's Counsel a ten-page letter outlining the GAO's statutory bases for its investigation. Compl., Ex. H. This letter was followed by several discussions between representatives of the GAO and the OVP in an effort to reach an agreement concerning the GAO's inquiry. Declaration of Anthony H. Gamboa ¶¶ 2-6.

On June 29, 2001, and July 9, 2001, representatives of the OVP asserted that the GAO had no authority to conduct the review. Id. ¶¶ 2, 4. Subsequently, on July 17, 2001, the Deputy White House Counsel indicated that the GAO would receive no additional documents from the OVP or the NEPDG staff. Id. ¶ 6.

The Comptroller General wrote directly to the Vice President on July 18, 2001, requesting "full and complete access . . . to records relating to the development of the Administration's National Energy Policy." Compl., Ex. I. The Comptroller General requested the following information:

(1) For each of the nine NEPDG meetings convened at the White House Complex, the "names of the attendees for each meeting, their titles, and the office represented";
(2) for the six NEPDG staff persons assigned to the OVP, "their names, titles, the office each individual represented, the date on which each individual began working for such office, and the responsibilities of the group support staff";
(3) for each meeting held by an NEPDG staff person to gather information relevant to the NEPDG's work, "(a) the date and location, (b) any person present, including his or her name, title and office, or clients represented, (c) the purpose and agenda, (d) any information presented, (e) minutes or notes, and (f) how members of the NEPDG, group support staff, or others determined who would be invited to meetings";
(4) with regard to any meetings the Vice President as chair of the NEPDG had with individuals to gather information relevant to the NEPDG, "(a) the date and location, (b) any person present, including his or her name, title, and office, or clients represented, (c) the purpose and agenda, (d) any information presented, (e) minutes or notes, and (f) how the Vice President or others determined who would be invited to the meetings"; and
(5) with regard to the direct and indirect costs of the NEPDG, "all records responsive to [GAO's prior] request, including any records that clarify the nature and purpose of the costs."

Pl.'s Mem. Supp. Summ. J. at 20. During a phone call between the Comptroller General and the Vice President's Counsel on July 31, 2001, the Comptroller General stated that he was eliminating the request for minutes and notes of the NEPDG meetings and for the information presented at those meetings. Declaration of David M. Walker ¶ 3.

On August 2, 2001, the Vice President submitted to the House of Representatives and to the Senate identical letters discussing the NEPDG records access dispute and asserting that the actions of the Comptroller General "exceed his lawful authority" and, "if given effect, would unconstitutionally interfere with the functioning of the Executive Branch." Compl., Ex. J at 1; Walker Decl. ΒΆ 4. The letter included a statement of the legal basis for ...


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