JUSTICE KENNEDY delivered the opinion of the Court.
The United States District Court for the District of Columbia entered discovery orders directing the Vice President and other senior officials in the Executive Branch to produce information about a task force established to give advice and make policy recommendations to the President. This case requires us to consider the circumstances under which a court of appeals may exercise its power to issue a writ of mandamus to modify or dissolve the orders when, by virtue of their overbreadth, enforcement might interfere with the
A few days after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG or Group). The Group was directed to "develo[p] ... a national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future." App. 156-157. The President assigned a number of agency heads and assistants—all employees of the Federal Government—to serve as members of the committee. He authorized the Vice President, as chairman of the Group, to invite "other officers of the Federal Government" to participate "as appropriate." Id., at 157. Five months later, the NEPDG issued a final report and, according to the Government, terminated all operations.
Following publication of the report, respondents Judicial Watch, Inc., and the Sierra Club filed these separate actions, which were later consolidated in the District Court. Respondents alleged the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act (FACA or Act), 5 U. S. C. App. § 2, p. 1.
FACA was enacted to monitor the "numerous committees, boards, commissions, councils, and similar groups [that] have been established to advise officers and agencies in the executive branch of the Federal Government," § 2(a), and to prevent the "wasteful expenditure of public funds" that may result from their proliferation, Public Citizen v. Department of Justice, 491 U.S. 440, 453 (1989). Subject to specific exemptions, FACA imposes a variety of open-meeting and disclosure requirements on groups that meet the definition of an "advisory committee." As relevant here, an "advisory committee" means
Respondents do not dispute the President appointed only Federal Government officials to the NEPDG. They agree that the NEPDG, as established by the President in his memorandum, was "composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government." Ibid. The complaint alleges, however, that "non-federal employees," including "private lobbyists," "regularly attended and fully participated in non-public meetings." App. 21 (Judicial Watch Complaint ¶ 25). Relying on Association of American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (CADC 1993) (AAPS), respondents contend that the regular participation of the non-Government individuals made them de facto members of the committee. According to the complaint, their "involvement and role are functionally indistinguishable from those of the other [formal] members." Id., at 915. As a result, respondents argue, the NEPDG cannot benefit from the Act's exemption under subsection B and is subject to FACA's requirements.
Vice President Cheney, the NEPDG, the Government officials who served on the committee, and the alleged de facto members were named as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA's requirements.
All defendants moved to dismiss. The District Court granted the motion in part and denied it in part. The court acknowledged FACA does not create a private cause of action. On this basis, it dismissed respondents' claims against
The District Court deferred ruling on the Government's contention that to disregard the exemption and apply FACA to the NEPDG would violate principles of separation of powers and interfere with the constitutional prerogatives of the President and the Vice President. Instead, the court allowed respondents to conduct a "tightly-reined" discovery to ascertain the NEPDG's structure and membership, and thus to determine whether the de facto membership doctrine applies. Judicial Watch, Inc. v. National Energy Policy Dev. Group, 219 F.Supp.2d 20, 54 (DC 2002). While acknowledging that discovery itself might raise serious constitutional questions, the District Court explained that the Government could assert executive privilege to protect sensitive materials from disclosure. In the District Court's view, these "issues of executive privilege will be much more limited in scope than the broad constitutional challenge raised by the government." Id., at 55. The District Court adopted this approach in an attempt to avoid constitutional questions, noting that if, after discovery, respondents have no evidentiary support for the allegations about the regular participation by lobbyists and industry executives on the NEPDG, the
In due course the District Court approved respondents' discovery plan, entered a series of orders allowing discovery to proceed, see CADC App. 238, 263, 364 (reproducing orders entered on Sept. 9, Oct. 17, and Nov. 1, 2002), and denied the Government's motion for certification under 28 U. S. C. § 1292(b) with respect to the discovery orders. Petitioners sought a writ of mandamus in the Court of Appeals to vacate the discovery orders, to direct the District Court to rule on the basis of the administrative record, and to dismiss the Vice President from the suit. The Vice President also filed a notice of appeal from the same orders. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); United States v. Nixon, 418 U.S. 683 (1974).
A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President's attempted interlocutory appeal. In re Cheney, 334 F.3d 1096 (CADC 2003). With respect to mandamus, the majority declined to issue the writ on the ground that alternative avenues of relief remained available. Citing United States v. Nixon, supra, the majority held that petitioners, to guard against intrusion into the President's prerogatives, must first assert privilege. Under its reading of Nixon, moreover, privilege claims must be made "`with particularity.'" 334 F. 3d, at 1104. In the majority's view, if the District Court sustains the privilege, petitioners will be able to obtain all the relief they seek. If the District Court rejects the claim of executive privilege and creates "an imminent risk of disclosure of allegedly protected presidential communications," "mandamus might well be appropriate to avoid letting `the
For similar reasons, the majority rejected the Vice President's interlocutory appeal. In United States v. Nixon, the Court held that the President could appeal an interlocutory subpoena order without having "to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review." 418 U. S., at 691. The majority, however, found the case inapplicable because Vice President Cheney, unlike then-President Nixon, had not yet asserted privilege. In the majority's view, the Vice President was not forced to choose between disclosure and suffering contempt for failure to obey a court order. The majority held that to require the Vice President to assert privilege does not create the unnecessary confrontation between two branches of Government described in Nixon.
Judge Randolph filed a dissenting opinion. In his view AAPS' de facto membership doctrine is mistaken, and the Constitution bars its application to the NEPDG. Allowing discovery to determine the applicability of the de facto membership doctrine, he concluded, is inappropriate. He would
We granted certiorari. 540 U.S. 1088 (2003). We now vacate the judgment of the Court of Appeals and remand the case for further proceedings to reconsider the Government's mandamus petition.
As a preliminary matter, we address respondents' argument that the Government's petition for a writ of mandamus was jurisdictionally out of time or, alternatively, barred by the equitable doctrine of laches. According to respondents, because the Government's basic argument was one of discovery immunity—that is, it need not invoke executive privilege or make particular objections to the discovery requests—the mandamus petition should have been filed with the Court of Appeals within 60 days after the District Court denied the Government's motion to dismiss. See Fed. Rule App. Proc. 4(a)(1)(B) ("When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered"). On this theory, the last day for making any filing to the Court of Appeals was September 9, 2002. The Government, however, did not file the mandamus petition and the notice of appeal until November 7, four months after the District Court issued the order that, under respondents' view, commenced the time for appeal.
As even respondents acknowledge, however, Rule 4(a), by its plain terms, applies only to the filing of a notice of appeal. Brief for Respondent Sierra Club 23. Rule 4(a) is inapplicable to the Government's mandamus petition under the All Writs Act, 28 U. S. C. § 1651. Because we vacate the Court of Appeals' judgment and remand the case for further proceedings for the court to consider whether a writ of mandamus should have issued, we need not decide whether the Vice President also could have appealed the District Court's orders
Respondents' argument that the mandamus petition was barred by laches does not withstand scrutiny. Laches might bar a petition for a writ of mandamus if the petitioner "slept upon his rights ..., and especially if the delay has been prejudicial to the [other party], or to the rights of other persons." Chapman v. County of Douglas, 107 U.S. 348, 355 (1883). Here, the flurry of activity following the District Court's denial of the motion to dismiss overcomes respondents' argument that the Government neglected to assert its rights. The Government filed, among other papers, a motion for a protective order on September 3; a motion to stay pending appeal on October 21; and a motion for leave to appeal pursuant to 28 U. S. C. § 1292(b) on October 23. Even were we to agree that the baseline for measuring the timeliness of the Government's mandamus petition was the District Court's order denying the motion to dismiss, the Government's active litigation posture was far from the neglect or delay that would make the application of laches appropriate.
We do not accept, furthermore, respondents' argument that laches should apply because the motions filed by the Government following the District Court's denial of its motion to dismiss amounted to little more than dilatory tactics to "delay and obstruct the proceedings." Brief for Respondent Sierra Club 23. In light of the drastic nature of mandamus and our precedents holding that mandamus may not issue so long as alternative avenues of relief remain available, the Government cannot be faulted for attempting to resolve the dispute through less drastic means. The law does not put litigants in the impossible position of having to exhaust alternative remedies before petitioning for mandamus, on the one hand, and having to file the mandamus petition at the earliest possible moment to avoid laches, on the
We now come to the central issue in the case—whether the Court of Appeals was correct to conclude it "ha[d] no authority to exercise the extraordinary remedy of mandamus," 334 F. 3d, at 1105, on the ground that the Government could protect its rights by asserting executive privilege in the District Court.
The common-law writ of mandamus against a lower court is codified at 28 U. S. C. § 1651(a): "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." This is a "drastic and extraordinary" remedy "reserved for really extraordinary causes." Ex parte Fahey, 332 U.S. 258, 259-260 (1947). "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine [the court against which mandamus is sought] to a lawful exercise of its prescribed jurisdiction." Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943). Although courts have not "confined themselves to an arbitrary and technical definition of `jurisdiction,'" Will v. United States, 389 U.S. 90, 95 (1967), "only exceptional circumstances amounting to a judicial `usurpation of power,'" ibid., or a "clear abuse of discretion," Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953), "will justify the invocation of this extraordinary remedy," Will, 389 U.S., at 95.
As the writ is one of "the most potent weapons in the judicial arsenal," id., at 107, three conditions must be satisfied before it may issue. Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 403 (1976). First, "the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires," ibid.—a condition designed to ensure that the writ will not be used as a
Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus, notwithstanding the District Court's denial of the motion for certification, might present different considerations. Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders. The mandamus petition alleges that the orders threaten "substantial intrusions on the process by which those in closest operational proximity to the President advise the President." App. 343. These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise. It is well established that "a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any `ordinary individual.'" United States v. Nixon, 418 U.S., at 715. Chief Justice Marshall, sitting as a trial judge, recognized the unique position of the Executive Branch when he stated that "[i]n no case ... would a court be required to
These separation-of-powers considerations should inform a court of appeals' evaluation of a mandamus petition involving the President or the Vice President. Accepted mandamus standards are broad enough to allow a court of appeals to prevent a lower court from interfering with a coequal branch's ability to discharge its constitutional responsibilities. See Ex parte Peru, supra, at 587 (recognizing jurisdiction to issue the writ because "the action of the political arm of the Government taken within its appropriate sphere [must] be promptly recognized, and ... delay and inconvenience of a prolonged litigation [must] be avoided by prompt termination of the proceedings in the district court"); see also Clinton v. Jones, supra, at 701 ("We have recognized that `[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties'" (quoting Loving v. United States, 517 U.S. 748, 757 (1996))).
The Court of Appeals dismissed these separation-of-powers concerns. Relying on United States v. Nixon, it held that even though respondents' discovery requests are overbroad and "go well beyond FACA's requirements," the Vice President and his former colleagues on the NEPDG "`shall bear the burden'" of invoking privilege with narrow specificity and objecting to the discovery requests with "`detailed precision.'" 334 F. 3d, at 1105-1106. In its view, this result was required by Nixon's rejection of an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances." 418 U.S., at 706. If Nixon refused to recognize broad claims of confidentiality where the President had asserted executive privilege, the majority reasoned, Nixon must have rejected, a fortiori, petitioners' claim of discovery immunity where the privilege has not even been invoked. According to the majority, because the Executive Branch can invoke executive privilege to maintain the separation of powers, mandamus relief is premature.
This analysis, however, overlooks fundamental differences in the two cases. Nixon cannot bear the weight the Court of Appeals puts upon it. First, unlike this case, which concerns respondents' requests for information for use in a civil suit, Nixon involves the proper balance between the Executive's interest in the confidentiality of its communications and the "constitutional need for production of relevant evidence in a criminal proceeding." Id., at 713. The Court's decision was explicit that it was "not ... concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation.... We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials." Id., at 712, n. 19.
The Court also observed in Nixon that a "primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions." Id., at 707. Withholding materials from a tribunal in an ongoing criminal case when the information is necessary to the court in carrying out its tasks "conflict[s] with the function of the courts under Art. III." Ibid. Such an impairment of the "essential functions of [another] branch," ibid., is impermissible. Withholding the information in this case, however, does not hamper another branch's ability to perform its "essential functions" in quite the same way. Ibid. The District Court ordered discovery here, not to remedy known statutory violations, but to ascertain whether FACA's disclosure requirements even apply to the NEPDG in the first place. Even if FACA embodies important congressional objectives, the only consequence from respondents'
A party's need for information is only one facet of the problem. An important factor weighing in the opposite direction is the burden imposed by the discovery orders. This is not a routine discovery dispute. The discovery requests are directed to the Vice President and other senior Government officials who served on the NEPDG to give advice and make recommendations to the President. The Executive Branch, at its highest level, is seeking the aid of the courts to protect its constitutional prerogatives. As we have already noted, special considerations control when the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated. This Court has held, on more than one occasion, that "[t]he high respect that is owed to the office of the Chief Executive ... is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery," Clinton, 520 U.S., at 707, and that the Executive's "constitutional responsibilities and status [are] factors counseling judicial deference and restraint" in the conduct of litigation against it, Nixon v. Fitzgerald, 457 U.S., at 753. Respondents' reliance on cases that do not involve senior members of the Executive Branch, see, e. g., Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U.S. 394 (1976), is altogether misplaced.
Finally, the narrow subpoena orders in United States v. Nixon stand on an altogether different footing from the overly broad discovery requests approved by the District Court in this case. The criminal subpoenas in Nixon were required to satisfy exacting standards of "(1) relevancy; (2) admissibility; (3) specificity." 418 U. S., at 700 (interpreting Fed. Rule Crim. Proc. 17(c)). They were "not intended to provide a means of discovery." 418 U. S., at 698. The burden of showing these standards were met, moreover, fell on the party requesting the information. Id., at 699 ("[I]n order to require production prior to trial, the moving party
In contrast to Nixon's subpoena orders that "precisely identified" and "specific[ally] ... enumerated" the relevant materials, id., at 688, and n. 5, the discovery requests here, as the panel majority acknowledged, ask for everything under the sky:
The preceding excerpt from respondents' "First Request for Production of Documents," id., at 215 (emphasis added),
The Government, however, did in fact object to the scope of discovery and asked the District Court to narrow it in some way. Its arguments were ignored. See App. 167, 181-183 (arguing "this case can be resolved far short of the wide-ranging inquiries plaintiffs have proposed" and suggesting alternatives to "limi[t]" discovery); id., at 232 ("Defendants object to the scope of plaintiffs' discovery requests and to the undue burden imposed by them. The scope of plaintiffs' requests is broader than that reasonably calculated to lead to admissible evidence"); id., at 232, n. 10 ("We state
Contrary to the District Court's and the Court of Appeals' conclusions, Nixon does not leave them the sole option of inviting the Executive Branch to invoke executive privilege while remaining otherwise powerless to modify a party's overly broad discovery requests. Executive privilege is an extraordinary assertion of power "not to be lightly invoked." United States v. Reynolds, 345 U.S. 1, 7 (1953). Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive's Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive's claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These "occasion[s] for constitutional confrontation between the two
In recognition of these concerns, there is sound precedent in the District of Columbia itself for district courts to explore other avenues, short of forcing the Executive to invoke privilege, when they are asked to enforce against the Executive Branch unnecessarily broad subpoenas. In United States v. Poindexter, 727 F.Supp. 1501 (1989), defendant Poindexter, on trial for criminal charges, sought to have the District Court enforce subpoena orders against President Reagan to obtain allegedly exculpatory materials. The Executive considered the subpoenas "unreasonable and oppressive." Id., at 1503. Rejecting defendant's argument that the Executive must first assert executive privilege to narrow the subpoenas, the District Court agreed with the President that "it is undesirable as a matter of constitutional and public policy to compel a President to make his decision on privilege with respect to a large array of documents." Ibid. The court decided to narrow, on its own, the scope of the subpoenas to allow the Executive "to consider whether to invoke executive privilege with respect to . . . a possibly smaller number of documents following the narrowing of the subpoenas." Id., at 1504. This is but one example of the choices available to the District Court and the Court of Appeals in this case.
As we discussed at the outset, under principles of mandamus jurisdiction, the Court of Appeals may exercise its power to issue the writ only upon a finding of "exceptional circumstances amounting to a judicial `usurpation of power,'" Will, 389 U. S., at 95, or a "clear abuse of discretion," Bankers Life, 346 U. S., at 383. As this case implicates the separation of powers, the Court of Appeals must also ask, as part of this inquiry, whether the District Court's actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties. This is especially so here because the District Court's analysis of whether mandamus relief is appropriate should itself be constrained
In the absence of overriding concerns of the sort discussed in Schlagenhauf, 379 U. S., at 111 (discussing, among other things, the need to avoid "piecemeal litigation" and to settle important issues of first impression in areas where this Court bears special responsibility), we decline petitioners' invitation to direct the Court of Appeals to issue the writ against the District Court. Moreover, this is not a case where, after having considered the issues, the Court of Appeals abused its discretion by failing to issue the writ. Instead, the Court of Appeals, relying on its mistaken reading of United States v. Nixon, prematurely terminated its inquiry after the Government refused to assert privilege and did so without even reaching the weighty separation-of-powers objections raised in the case, much less exercised its discretion to determine whether "the writ is appropriate under the circumstances." Supra, at 381. Because the issuance of the writ is a matter vested in the discretion of the court to which the petition is made, and because this Court is not presented with an original writ of mandamus, see, e. g., Ex parte Peru, 318 U. S., at 586, we leave to the Court of Appeals to address the parties' arguments with respect to the challenge to AAPS and the discovery orders. Other matters bearing on whether the writ of mandamus should issue should also be addressed, in the first instance, by the Court of Appeals after considering any additional briefs and arguments as it deems appropriate. We note only that all courts should be mindful of the burdens imposed on the Executive Branch in any future proceedings. Special considerations
The judgment of the Court of Appeals for the District of Columbia is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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 FACA's requirement that "records related to the advisory committee's work be made public"—the only requirement still enforceable if, as respondent Sierra Club concedes, the National Energy Policy Development Group (NEPDG) no longer exists. See Judicial
Thus, granting broad discovery in this case effectively prejudged the merits of respondents' claim for mandamus relief— an 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.
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
One need look no further than the District Court's 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 Court's recognition "that applying FACA to meetings among Presidential advisors `present[s] formidable constitutional difficulties.'" Judicial Watch, Inc. v. National Energy Policy Dev. Group, 219 F.Supp.2d 20, 47 (DC 2002) (quoting Public Citizen v. Department of Justice, 491 U.S. 440, 466 (1989)).
Putting aside the serious constitutional questions raised by respondents' challenge, the District Court could not even
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.
The Government, in seeking a writ of mandamus from the Court of Appeals for the District of Columbia, and on brief to this Court, urged that this case should be resolved without any discovery. See App. 183-184, 339; Brief for Petitioners 45; Reply Brief 18. In vacating the judgment of the Court of Appeals, however, this Court remands for consideration whether mandamus is appropriate due to the overbreadth of the District Court's discovery orders. See ante, at 372-373, 387-390. But, as the Court of Appeals observed, it appeared that the Government "never asked the district court to narrow discovery." In re Cheney, 334 F.3d 1096, 1106 (CADC 2003) (emphasis in original). Given the Government's decision to resist all discovery, mandamus relief based on the exorbitance of the discovery orders is at least "premature," id., at 1104. I would therefore affirm the judgment of the Court of Appeals denying the writ,
The discovery at issue here was sought in a civil action filed by respondents Judicial Watch, Inc., and Sierra Club.
The discovery plan drawn by Judicial Watch and Sierra Club was indeed "unbounded in scope." Ante, at 388; accord 334 F. 3d, at 1106. Initial approval of that plan by the District Court, however, was not given in stunning disregard of separation-of-powers concerns. Cf. ante, at 387-391. In the order itself, the District Court invited "detailed and precise object[ions]" to any of the discovery requests, and instructed the Government to "identify and explain ... invocations of privilege with particularity." App. to Pet. for Cert. 51a. To avoid duplication, the District Court provided that the Government could identify "documents or information [responsive to the discovery requests] that [it] ha[d] already released to [Judicial Watch or the Sierra Club] in different fora." Ibid.
Despite the absence from this "flurry of activity," ante, at 379, of any Government motion contesting the terms of the discovery plan or proposing a scaled-down substitute plan, see 334 F. 3d, at 1106, this Court states that the Government
True, the Government disputed the definition of the term "meeting" in respondents' interrogatories, and stated, in passing, that "discovery should be [both] limited to written interrogatories" and "limited in scope to the issue of membership." Id., at 179, 181, 233.
Further sounding the Government's leitmotif, in a hearing on the proposed discovery plan, the District Court stated that the Government "didn't file objections" to rein in discovery "because [in the Government's view] no discovery is appropriate." Id., at 192; id., at 205 (same). Without endeavoring to correct any misunderstanding on the District Court's part, the Government underscored its resistance to any and all discovery. Id., at 192-194; id., at 201 (asserting that respondents are "not entitled to discovery to supplement [the administrative record]"). And in its motion for a protective order, the Government similarly declared its unqualified opposition to discovery. See Memorandum in Support of Defendants' Motion for a Protective Order and for Reconsideration, C. A. Nos. 01-1530 (EGS), 02-631 (EGS), p. 21 (D. D. C., Sept. 3, 2002) ("[Petitioners] respectfully request that the Court enter a protective order relieving them of any obligation to respond to [respondents'] discovery [requests]." (emphasis added)); see 334 F. 3d, at 1106 (same).
Denied § 1292(b) certification by the District Court, the Government sought a writ of mandamus from the Court of Appeals. See id., at 339-365. In its mandamus petition, the Government asked the appellate court to "vacate the discovery orders issued by the district court, direct the court to decide the case on the basis of the administrative record and such supplemental affidavits as it may require, and direct that the Vice President be dismissed as a defendant." Id., at 364-365. In support of those requests, the Government again argued that the case should be adjudicated without discovery: "The Constitution and principles of comity preclude discovery of the President or Vice President, especially without a demonstration of compelling and focused countervailing interest." Id., at 360.
The Court of Appeals acknowledged that the discovery plan presented by respondents and approved by the District
The Court of Appeals stressed that the District Court could accommodate separation-of-powers concerns short of denying all discovery or compelling the invocation of executive privilege. See 334 F. 3d, at 1105-1106. Principally, the Court of Appeals stated, discovery could be narrowed, should the Government so move, to encompass only "whether non-federal officials participated [in NEPDG], and if so, to what extent." Id., at 1106. The Government could identify relevant materials produced in other litigation, thus avoiding undue reproduction. Id., at 1105; see App. to Pet. for Cert. 51a; supra, at 397. If, after appropriate narrowing, the discovery allowed still impels "the Vice President ... to claim privilege," the District Court could "entertain [those] privilege claims" and "review allegedly privileged documents in camera." 334 F. 3d, at 1107. Mindful of "the judiciary's responsibility to police the separation of powers in litigation involving the executive," the Court of Appeals
"This Court repeatedly has observed that the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (citing Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 402 (1976)); see ante, at 380-381 (same). As the Court reiterates, "the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires." Kerr, 426 U.S., at 403 (citing Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943)); ante, at 380-381.
Throughout this litigation, the Government has declined to move for reduction of the District Court's discovery order to accommodate separation-of-powers concerns. See supra, at 398-402. The Court now remands this case so the Court of Appeals can consider whether a mandamus writ should issue ordering the District Court to "explore other avenues, short of forcing the Executive to invoke privilege," and, in particular, to "narrow, on its own, the scope of [discovery]." Ante, at 390. Nothing in the District Court's orders or the Court of Appeals' opinion, however, suggests that either of those courts would refuse reasonably to accommodate separation-of-powers concerns. See supra, at 397, 398, 401-402, and this page. When parties seeking a mandamus writ decline to avail themselves of opportunities to obtain relief from the District Court, a writ of mandamus ordering the same relief—i. e., here, reined-in discovery—is surely a doubtful proposition.
The District Court, moreover, did not err in failing to narrow discovery on its own initiative. Although the Court cites United States v. Poindexter, 727 F.Supp. 1501 (DC 1989), as "sound precedent" for district-court narrowing of
* * *
Review by mandamus at this stage of the proceedings would be at least comprehensible as a means to test the Government's position that no discovery is appropriate in this litigation. See Brief for Petitioners 45 ("[P]etitioners' separation-of-powers arguments are ... in the nature of a claim of immunity from discovery."). But in remanding for consideration of discovery-tailoring measures, the Court apparently rejects that no-discovery position. Otherwise, a remand based on the overbreadth of the discovery requests would make no sense. Nothing in the record, however, intimates lower court refusal to reduce discovery. Indeed, the appeals court has already suggested tailored discovery that would avoid "effectively prejudg[ing] the merits of respondents' claim," ante, at 393 (STEVENS, J., concurring). See 334 F. 3d, at 1106 (respondents "need only documents referring to the involvement of non-federal officials"). See also ante, at 393, n. (STEVENS, J., concurring) ("A few interrogatories or depositions might have determined ... whether any non-Government employees voted on NEPDG recommendations or drafted portions of the committee's report"). In accord with the Court of Appeals, I am "confident that [were it moved to do so] the district court here [would] protect petitioners' legitimate interests and keep discovery within appropriate limits." 334 F. 3d, at 1107.
JUSTICE THOMAS urges that respondents cannot obtain § 1361 relief if "wide-ranging discovery [is needed] to prove that they have any right to relief." Ante, at 395 (opinion concurring in part and dissenting in part) (emphasis in original). First, as the Court of Appeals recognized, see supra, at 402-403; infra, at 405, should the Government so move, the District Court could contain discovery so that it would not be "wideranging." Second, all agree that an applicant seeking a § 1361 mandamus writ must show that "the [federal] defendant owes him a clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984) (emphasis added). No § 1361 writ may issue, in other words, when federal law grants discretion to the federal officer, rather than imposing a duty on him. When federal law imposes an obligation, however, suit under § 1361 is not precluded simply because facts must be developed to ascertain whether a federal command has been dishonored. Congress enacted § 1361 to "mak[e] it more convenient for aggrieved persons to file actions in the nature of mandamus," Stafford v. Briggs, 444 U.S. 527, 535 (1980), not to address the rare instance in which a federal defendant, upon whom the law unequivocally places an obligation, concedes his failure to measure up to that obligation.