[ Kennedy ]
[ Stevens ]
[ Ginsburg ]
[ Opinion of Thomas ]
RICHARD B. CHENEY, VICE PRESIDENT OF
UNITED STATES, et al., PETITIONERS
UNITED STATES DISTRICT COURT FOR
OF COLUMBIA et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 24, 2004]
Justice Stevens, concurring.
Broad discovery should be encouraged when it serves the salutary purpose of facilitating the prompt and fair resolution of concrete disputes. In the normal case, it is entirely appropriate to require the responding party to make particularized objections to discovery requests. In some circumstances, however, the requesting party should be required to assume a heavy burden of persuasion before any discovery is allowed. Two interrelated considerations support taking that approach in this case: the nature of the remedy respondents requested from the District Court, and the nature of the statute they sought to enforce.
As relevant here, respondents, Judicial Watch, Inc., and Sierra Club, sought a writ of mandamus under 28 U.S.C. § 1361. Mandamus is an extraordinary remedy, available to a plaintiff only if the defendant owes him a clear nondiscretionary duty. Heckler v. Ringer, 466 U.S. 602, 616 (1984). Thus, to persuade the District Court that they were entitled to mandamus relief, respondents had to establish that petitioners had a nondiscretionary duty to comply with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. §1 et seq., p. 1, and in particular with FACAs requirement that records related to the advisory committees work be made publicthe only requirement still enforceable if, as respondent Sierra Club concedes, the National Energy Policy Development Group (NEPDG) no longer exists. See Judicial Watch, Inc. v. National Energy Policy Dev. Group, 219 F. Supp. 2d 20, 42 (DC 2002). Relying on the Court of Appeals novel de facto member doctrine, ante, at 3, respondents sought to make that showing by obtaining the very records to which they will be entitled if they win their lawsuit. In other words, respondents sought to obtain, through discovery, information about the NEPDGs work in order to establish their entitlement to the same information.
Thus, granting broad discovery in this case effectively prejudged the merits of respondents claim for mandamus reliefan outcome entirely inconsistent with the extraordinary nature of the writ. Under these circumstances, instead of requiring petitioners to object to particular discovery requests, the District Court should have required respondents to demonstrate that particular requests would tend to establish their theory of the case.*<* num="*"> I therefore think it would have been appropriate for the Court of Appeals to vacate the District Courts discovery order. I nevertheless join the Courts opinion and judgment because, as the architect of the de facto member doctrine, the Court of Appeals is the appropriate forum to direct future proceedings in the case.
*. * A few interrogatories or depositions might have determined, for example, whether any non-Government employees voted on NEPDG recommendations or drafted portions of the committees report. In my view, only substantive participation of this nature would even arguably be sufficient to warrant classifying a non-Government employee as a de facto committee member.