[ 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 Thomas, with whom Justice Scalia joins, concurring in part and dissenting in part.
I agree that [t]he remedy of
mandamus is a drastic one, to be invoked only in extraordinary
situations. Kerr v. United States Dist. Court
for Northern Dist. of Cal., 426 U.S. 394, 402
(1976). In framing our review of the Court of Appeals
judgment, the Court recognizes this hurdle, observing that
the petitioner must satisfy the burden of showing
that [his] right to issuance of the writ is clear and
One need look no further than the
District Courts opinion to conclude respondents
right to relief in the District Court was unclear and hence
that mandamus would be unavailable. Indeed, the District Court
acknowledged this Courts recognition that applying
FACA to meetings among Presidential advisors present[s]
formidable constitutional difficulties.
Putting aside the serious constitutional questions raised by respondents challenge, the District Court could not even determine whether FACA applies to the National Energy Policy Development Group (NEPDG) as a statutory matter. 219 F. Supp. 2d, at 5455 (noting the possibility that, after discovery, petitioners might prevail on summary judgment on statutory grounds). I acknowledge that under the Court of Appeals de facto member doctrine, see Association of American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 915 (CADC 1993), a district court is authorized to undertake broad discovery to determine whether FACAs Government employees exception, 5 U.S.C. App. §3(2)(C)(i), p. 2, applies. But, application of the de facto member doctrine to authorize broad discovery into the inner-workings of the NEPDG has the same potential to offend the Constitutions separation of powers as the actual application of FACA to the NEPDG itself. 334 F.3d, at 11141115 (Randolph, J., dissenting). Thus, the existence of this doctrine cannot support the District Courts actions here. If respondents must conduct wide-ranging discovery in order to prove that they have any right to reliefmuch less that they have a clear and indisputable right to reliefmandamus is unwarranted, and the writ should not issue.
Although the District Court might later conclude that FACA applies to the NEPDG as a statutory matter and that such application is constitutional, the mere fact that the District Court might rule in respondents favor cannot establish the clear right to relief necessary for mandamus. Otherwise, the writ of mandamus could turn into a freestanding cause of action for plaintiffs seeking to enforce virtually any statute, even those that provide no such private remedy.
Because the District Court clearly exceeded its authority in this case, I would reverse the judgment of the Court of Appeals and remand the case with instruction to issue the writ.