In re Cheney

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge RANDOLPH.

TATEL, Circuit Judge:

The Vice President of the United States and others, all defendants in this suit under the Federal Advisory Committee Act, petition for a writ of mandamus vacating the district court’s discovery orders, directing the district court to rule on the basis of the administrative record, and ordering dismissal of the Vice President as a party. Petitioners, however, have failed to satisfy the heavy burden required to justify the extraordinary remedy of mandamus: Their challenges to the district court’s legal rulings can be fully considered on appeal following final judgment, and their claims of harm can, at least at this stage of the litigation, be fully cured in the district court. We therefore dismiss the petition. The Vice President has also filed an inter-loeutory appeal from the district court’s rulings. We lack jurisdiction to entertain that appeal: The collateral order doctrine does not apply, nor does United States v. Nixon, where the Supreme Court entertained an interlocutory appeal because, unlike here, the district court had rejected a claim of executive privilege.

I.

Shortly after his inauguration, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG), a task force charged with “develop[ing] ... 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.” Mem. Establishing National Energy Policy Development Group, Jan. 29, 2001. Established within the Office of the President and chaired by Vice President Richard B. Cheney, the task force consisted of six cabinet secretaries, as well as several agency heads and assistants to the President. Id. The memorandum authorized the Vice President to invite “other officers of the Federal Government” to participate “as appropriate.” Id. Five months later, the NEPDG issued a final report recommending a set of energy policies. See NATIONAL ENERGY POLICY DEVELOPMENT GROUP, National Energy Polioy: Repoet of the National EneRgy Policy Development Group (2001), available at http://www. whitehouse.gov/energy/National-Energy-Policy.pdf.

On July 16, 2001, Judicial Watch, a nonprofit organization that seeks “to promote and protect the public interest in matters of public concern,” Second Am. Compl. ¶ 3 (Judicial Watch Compl.), filed suit in the United States District Court for the District of Columbia against the NEPDG, the Vice President, other federal officials, and several private individuals, alleging that the NEPDG had failed to comply with the procedural requirements of the Federal Advisory Committee Act (FACA), 5 U.S.CApp. 2. Enacted to “control the growth and operation of the ‘numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government,”’ Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 902-03 (D.C.Cir.1993) (AAPS) (quoting 5 U.S.C.App. 2, § 2(a)), FACA requires advisory committees to make public all reports, records, or other documents used by the committee, provided they do not fall within any Freedom of Information Act exemptions. Central to this case, FACA section 3(2) exempts advisory committees “composed wholly of full-time officers or employees of the Federal Government.” 5 U.S.C.App. 2, § 3(2)(iii).

Although the President appointed only federal government officials to the NEPDG and authorized the Vice President to add additional “federal officials,” Judicial Watch alleges that “non-federal employees, including Thomas Kuhn, Kenneth Lay, Marc Racicot, Haley Barbour, representatives of the Clean Power Group, and other private lobbyists ..., regularly attended and fully participated in non-public meetings of the NEPDG as if they were members of the NEPDG, and, in fact, were members of the NEPDG.” Judicial Watch Compl. ¶ 25; see AAPS, 997 F.2d at 915 (holding that the section 3(2) exemption does not apply if non-government officials’ “involvement and role are functionally indistinguishable from those of the other members”). Brought pursuant to both the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the All Writs Act, 28 U.S.C. § 1361, the complaint sought, among other things, a judgment declaring the defendants to be in violation of FACA and an order directing them to provide plaintiffs “a full and complete copy of all records ... made available to or prepared for Defendant NEPDG,” as well as “detailed minutes of each meeting of Defendant NEPDG ... that contain a record of persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all report[s] received, issued, or approved by Defendant NEPDG.” Judicial Watch Compl. at 22.

Before proceedings commenced in the district court, the Sierra Club, a nonprofit group seeking “to practice and promote the responsible use of the Earth’s resources and ecosystems,” filed a virtually identical lawsuit in the United States District Court for the Northern District of California. Compl. ¶ 3. The Sierra Club’s suit was subsequently transferred to the district court here and consolidated with Judicial Watch’s.

All defendants moved to dismiss, arguing, among other things, that FACA does not authorize a private cause of action, that the Vice President cannot be sued under the APA, and that “[a]pplication of FACA to the NEPDG’s operations would directly interfere with the President’s express constitutional authority including his responsibility to recommend legislation to Congress and his power to require opinions of his department heads.” Mem. in Support of Mot. to Dismiss at 3 (D.D.C. Mar. 8, 2002). Amplifying this latter point, defendants argued that “such an expansive reading of FACA would encroach upon the President’s constitutionally protected interest in receiving confidential advice from his chosen advisers, an interest that is also rooted in the principle of separation of powers.” Id. Although the district court agreed that no private cause of action exists under FACA and recognized that the Vice President cannot be sued under the APA, it ruled that FACA could be enforceable through mandamus. Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group, 219 F.Supp.2d 20, 42 (D.D.C.2002). Relying on the “fundamental principle of constitutional interpretation that a court should not pass on any constitutional questions that are not necessary to determine the outcome of the case or controversy before it,” id. at 45, the district court deferred ruling on the government’s separation of powers claim, explaining that “after discovery, the government may prevail on summary judgment on statutory grounds without the need for this Court to address the constitutionality of applying FACA [to the Vice President],” id. at 54-55. The court observed that, “while discovery in this case may raise some constitutional issues, those issues of executive privilege will be much more limited in scope than the broad constitutional challenge raised by the government here.” Id. at 55.

After denying defendants’ motion to dismiss, the district court approved plaintiffs’ discovery plan and directed the government to “fully comply- with the[] requests,” “file detailed and precise objections to particular requests,” or “identify and explain their invocations of privilege with particularity.” Order Approving Disc. Plan at 2 (D.D.C. Aug. 2, 2002). In response and on behalf of all federal defendants except the Vice President, the government produced some 36,000 pages of documents. On behalf of the Vice President, the government filed a motion for a protective order, arguing that discovery against the Vice President would violate the separation of powers and seeking permission to file a motion for summary judgment based on the “administrative record.” According to the government, the administrative record consists of the President’s memorandum creating the NEPDG, the NEPDG’s final report, and an affidavit by Karen Knutson, Deputy Assistant to the Vice President for Domestic Policy. Submitted with the motion for a protective order, Ms. Knutson’s affidavit declares that “[t]o the best of my knowledge, no one other than the officers of the Federal Government who constituted the NEPDG, the Federal employees whom they chose from their respective departments, agencies and offices to accompany them (all of whom were full-time Federal employees), and the Office of the Vice President personnel set forth above, attended any of the [NEPDG] meetings.” Knutson Aff. ¶ 10.

Although the district court acknowledged that “[i]n APA cases, discovery is normally frowned upon,” it stated that it would not consider a motion for summary judgment until after discovery, explaining that “this case isn’t the typical case, where you have a significant administrative record.” Tr. of Status Hr’g at 13:17-23 (D.D.C. Aug. 2, 2002). The court therefore denied the government’s motion for a protective order and directed defendants to “produce non-privileged documents and a privilege log.” Order Den. Mots, for Reeons. and Protective Order at 1 (D.D.C. Oct. 17, 2002). The court informed the parties that it was considering either reviewing allegedly privileged information in camera or appointing a special master, such as a retired judge, to review privilege claims. Tr. of Omnibus Mots. Hr’g at 4:15-5:12 (D.D.C. Oct. 17, 2002).

Instead of responding to plaintiffs’ discovery requests and filing a privilege log, defendants asked the district court to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court declined, Mem. Op. and Order (D.D.C. Nov. 27, 2002), and defendants filed in this court an emergency motion for writ of mandamus pursuant to 28 U.S.C. § 1651 seeking an order “vacating] the discovery orders issued by the district court, directing] the court to decide the ease on the basis of the administrative record and such supplemental affidavits as it may require, and directing] that the Vice President be dismissed as a defendant.” Emergency Pet. for Writ of Mandamus at 20. The Vice President also filed a notice of appeal from the district court’s order denying the motion to dismiss and from the various discovery orders. Plaintiffs opposed the mandamus petition and filed a motion to dismiss the interlocutory appeal. We granted an administrative stay and heard oral argument on April 17, 2003.

Now before us are the petition for a writ of mandamus and the plaintiffs’ motion to dismiss the appeal. We address each in turn.

II.

In considering the petition for a writ of mandamus, we are bound by well-established rules of both the Supreme Court and this court. “The remedy of mandamus,” the Supreme Court has explained, “is a drastic one, to be invoked only in extraordinary situations.” Kerr v. United States Dist. Court, 426 U.S. 394, 401, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976) (internal citations omitted). “[0]nly exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Emphasizing the rarity of mandamus relief, the Supreme Court has noted that “our cases have answered the question as to the availability of mandamus ... with the refrain: What never? Well, hardly ever!”’ Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 190-91, 66 L.Ed.2d 193 (1980) (emphasis in original).

In Kerr, the Supreme Court explained the policy underlying the limited nature of mandamus relief:

[P]articularly in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation. It has been Congress’ determination since the Judiciary Act of 1789 that as a general rule ‘appellate review should be postponed ... until after final judgment has been rendered by the trial court.’ A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.

Kerr, 426 U.S. at 403, 96 S.Ct. at 2124 (internal citations omitted) (ellipses in original).

Consistent with these principles, in determining whether mandamus is warranted, we consider “whether the party seeking the writ has any other adequate means, such as a direct appeal, to attain the desired relief,” and “whether that party will be harmed in a way not correctable on appeal.” Nat’l Ass’n of Criminal Def. Lawyers, Inc. v. United States Dep’t of Justice, 182 F.3d 981, 986 (D.C.Cir.1999). Petitioner “has the ‘burden of showing that its right to issuance of the writ is clear and indisputable.’ ” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143-44, 99 L.Ed.2d 296 (1988).

Our recent decision in In re Executive Office of the President, 215 F.3d 20 (D.C.Cir.2000), not only demonstrates the strictness of the mandamus standard, but also largely controls the disposition of this case. There, plaintiff alleged, among other things, that President Clinton’s personal staff and other White House units that advise and assist the President were maintaining FBI files of former political appointees in violation of the Privacy Act. The district court denied the government’s motion to dismiss, ordered discovery, and rejected the White House’s assertion of the attorney client, deliberative process, and work product privileges. The government then sought a writ of mandamus to vacate the district court’s discovery order with respect to one particular interrogatory. The government also argued that without mandamus relief “the President’s interactions with his closest advisors will be irreparably damaged in the future, because the District Court has sought to coerce the White House, on threat of criminal sanction, into following a view of the Privacy Act to which it does not subscribe.” Id. at 24.

Noting that “[a]lmost the entire thrust of [the government’s] petition is that the District Court erred in concluding that the White House is subject to the Privacy Act,” we explained that “[e]ven assuming, arguendo, that the District Court’s holding on the scope of the Privacy Act is clear error, mandamus relief is not warranted in this case. This is so because, on the record at hand, there has been no showing of harm of the sort required to justify the drastic remedy of mandamus.” Id. at 23. Further, although acknowledging that “ ‘disclosure [of highly privileged material] followed by appeal after final judgment is obviously not adequate in such cases—the cat is out of the bag,’ ” id. (bracketed material in original), we observed that “[i]n the normal course, ... mandamus is not available to review a discovery order,” id. We then denied the request for mandamus, explaining that the government “offered ... no argument that it is even entitled to the privileges,” and that “[a]b-sent a viable claim that some important privilege will be infringed if discovery is allowed to proceed, this court has no jurisdiction to review the interlocutory order on this ground.” Id. at 23-24. As to the government’s fear that the district court might hold White House staff in criminal contempt, we explained, “the District Court has no free-wheeling authority to run the affairs of the White House with respect to matters that are not related to the instant case.” Id. at 24.

With this case law in mind, we consider the petition for writ of mandamus. Petitioners first argue that by allowing broad discovery into “the inner workings of the executive including the Vice President,” Emergency Pet. for Writ of Mandamus at 12, on nothing more than a “mere allegation of ... unofficial non-government” participation in the work of the NEPDG, the district court has “brought to the fore the substantial constitutional questions it sought to avoid,” id. at 14. Petitioners therefore ask that we direct the district court to decide the case on the basis of the administrative record. For two reasons, we may not do so.

First, as petitioners concede, plaintiffs’ cause of action against the Vice President arises not under the APA, but under the Mandamus Act. 28 U.S.C. § 1361. Cf. Chamber of Commerce v. Reich, 74 F.3d 1322, 1826-28 (D.C.Cir.1996) (explaining availability of “non-statutory review” even in the absence of a statutory cause of action). Moreover, even if APA review standards apply to mandamus actions — a question we need not resolve here — the rule that APA review is generally limited to the administrative record has two exceptions: “when there has been a ‘strong showing of bad faith or improper behavior’ or when the record is so bare that it prevents effective judicial review.” Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C.Cir.1998) (internal citation omitted). Petitioners argue that plaintiffs have not made the “strong showing” required by the first exception. This is true, but plaintiffs do not invoke the first exception. Instead, they rely on the second exception, arguing that the record is inadequate to resolve the statutory issue pending before the district court. As they point out, the President’s memorandum establishing the NEPDG and the NEPDG’s final report tell us only that the NEPDG’s members were all federal employees. The two documents reveal nothing about whether, notwithstanding the President’s appointment of only federal officials, non-federal personnel participated in the work of the NEPDG “as if they were members of the NEPDG.” Judicial Watch Compl. ¶ 25. Although the Knutson affidavit does address this question; because the government submitted it during litigation, it is not itself part of the administrative record. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971) (administrative record does not include “litigation affidavits”); Envtl. Def. Fund, Inc., v. Costle, 657 F.2d 275, 286 (D.C.Cir.1981) (rejecting creation of exception to Overton Park to allow parties challenging administrative action to submit affidavits addressing the merits of the agency decision).

As respondents point out, we faced a similar issue in AAPS. There, plaintiffs alleged that another presidential committee — President Clinton’s Task Force on National Health Care Reform — failed to follow FACA’s procedural requirements. We held that in determining the applicability of FACA section 3(2)’s exemption for meetings of full-time government officials, we would look beyond formal membership to whether persons described as consultants “may still be properly described as memberfs] of an advisory committee if [their] involvement and role are functionally indistinguishable from those of the other members.” AAPS, 997 F.2d at 915. To answer that question — essentially the same question the district court faces here — we remanded for “expedited discovery.” Id. at 916.

Second, and most important given the interlocutory status of this case, even were there some doubt about-the district court’s refusal to rely on the administrative record — indeed, even if, as petitioners insist, AAPS is distinguishable from this case and the district court’s ruling amounts to “clear and significant error,” Emergency Pet. for Writ of Mandamus at 5 — petitioners are entitled to mandamus relief only if they face a risk of harm that cannot be cured in the district court. This is the teaching of the mandamus cases discussed above. Absent harm for which there is “no other adequate means ... [of] attainting] the desired relief,” Nat’l Ass’n of Criminal Def. Lawyers, 182 F.3d at 986, appellate courts may not grant mandamus relief from a district court’s legal judgment even if that judgment constitutes “clear error,” In re Executive Office of the President, 215 F.3d at 23. “[A]ny error — even a clear one — could be corrected on appeal.” Nat’l Ass’n of Criminal Def. Lawyers, 182 F.3d at 987. Because this is equally true of petitioners’ second challenge — that the district court erred by failing to dismiss the Vice President as a party — we turn to the key issue on which petitioners’ entitlement to mandamus relief depends: Have they identified some “harm” flowing from the district court’s challenged rulings that cannot be remedied either in the district court or on appeal following final judgment?

Petitioners’ primary claim of harm is that “in the circumstances of this case, ... extending the legislative and judicial powers to compel a Vice President to disclose to private persons the details of the process by which a President obtains information and advice from the Vice President raises separation of powers problems of the first order.” Emergency Pet. for Writ of Mandamus at 4. Under the circumstances of this case, however, this argument is premature. Far from “orderfing] extensive disclosure of communications between senior executive branch officials and those with information relevant to advice that was being formulated for the President,” Reply to Appellees’ Resp. to Emergency Pet. for Writ of Mandamus at 1, the district court ordered defendants to produce “non-privileged documents and a privilege log.” Order Den. Mots, for Recons. and Protective Order at 1 (D.D.C. Oct. 17, 2002). Petitioners neither produced a privilege log nor, as directed by the district court’s earlier order, did they invoke “privileges with particularity.” Order Approving Disc. Plan at 2 (D.D.C. Aug. 2, 2002). If mandamus was inappropriate in Executive Office of the President, where the President had asserted but failed to justify asserted privileges, it is certainly unjustified here, where petitioners have yet to assert a privilege in the district court. “Absent a viable claim that some important privilege will be infringed if discovery is allowed to proceed, this court has no jurisdiction to review the interlocutory order.” In re Executive Office of the President, 215 F.3d at 24.

Moreover, petitioners’ concerns about the potential disclosure of privileged information are fully addressable in the district court or, if necessary, in a later proceeding here. If, in response to the district court’s discovery order, petitioners choose to invoke executive or any other privilege, that court, keeping in mind the need to “accord[ ] high respect to the representations made on behalf of the President,” United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974), may sustain the privilege, thus giving petitioners all the relief they seek here. See Kerr, 426 U.S. at 401, 96 S.Ct. at 2123 (denying mandamus petition challenging district court order rejecting broad state secrets privilege and allowing disclosure of state documents regarding prison-parole system because district court could review documents in camera to determine privilege’s applicability). On the other hand, were the district court to reject a claim of executive privilege, thus creating an imminent risk of disclosure of allegedly protected presidential communications, then mandamus might well be appropriate to avoid letting “the cat ... out of the bag.” In re Executive Office of the President, 215 F.3d at 23-24; see In re Papandreou, 139 F.3d 247 (D.C.Cir.1998) (granting mandamus relief of district court order that diplomats submit to depositions in order to review diplomats’ assertion of immunity); In re: Sealed Case, 151 F.3d 1059 (D.C.Cir.1998) (granting mandamus where district court’s discovery order was insufficiently protective of secret grand jury information). But so long as the separation of powers conflict that petitioners anticipate remains hypothetical, we have no authority to exercise the extraordinary remedy of mandamus. As we said in Executive Office of the President, “[i]n the normal course, ... mandamus is not available to review a discovery order.” 215 F.3d at 23.

Petitioners next argue that in order to protect the separation of powers, the “President should not be forced to ‘consider the privilege question’ in response to unnecessarily broad or otherwise improper discovery.” Emergency Pet. for Writ of Mandamus at 15 (internal citation omitted). We see two answers to this argument. First, executive privilege is itself designed to protect the separation of powers. “The privilege,” the Supreme Court explained in United States v. Nixon, “is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” Nixon, 418 U.S. at 708, 94 S.Ct. at 3107-08. Were we to hold, as petitioners and the dissent urge, that the Constitution protects the President and Vice President from ever having to invoke executive privilege, we would have transformed executive privilege from a doctrine designed to protect presidential communications into virtual immunity from suit. Yet, as the Supreme Court also held in Nixon, “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Id. at 707, 94 S.Ct. at 3107. Indeed, the Supreme Court has consistently held that because the President is not “above the law,” he is subject to judicial process. Id. at 715, 94 S.Ct. at 3111; see also Clinton v. Jones, 520 U.S. 681, 703-04, 117 S.Ct. 1636, 1648-49, 137 L.Ed.2d 945 (1997).

The second answer to petitioners’ argument is that their worry about “unnecessarily broad” discovery can be resolved in the district court. According to petitioners, discovery is excessive because (1) they have already produced some 36,000 pages worth of documents and (2) the discovery “compelled by the district court would result in even more sweeping intrusions into the Vice President’s office than would result from the remedies available if plaintiffs were to prevail on the merits of their suit.” Emergency Pet. for Writ of Mandamus at 4.

The district court has already addressed the first concern. In its order approving plaintiffs’ discovery plan, the district court expressly stated: “[Sjhould defendants believe that documents or information that they have already released to plaintiffs in different fora are responsive to these discovery requests, defendants shall bear the burden of identifying with detailed precision what information or documents have been so released, and to which discovery requests they believe the information or documents to be responsive.” Order Approving Disc. Plan at 2 (Aug. 2, 2002). Petitioners have yet to avail themselves of this aspect of the district court’s order.

Petitioners’ second concern is well taken. If the district court ultimately determines’ that the NEPDG is subject to FACA, plaintiffs would be entitled to “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by [the] ... committee.” 5 U.S.C.App. 2, § 10(b). Yet plaintiffs’ discovery seeks far more than these limited items. Their third interrogatory, for example, asks for the names of “all Task Force staff, personnel, consultants, employees, and all other persons who participated, in any manner, in the activities of the Task Force or the preparation of the Report.” The fourth interrogatory asks that “[f]or each person listed in response to Interrogatory 3, ... please provide ... a description of the person’s role in the activities of the Task Force and in preparation of the Report.” The requests to produce also go well beyond FACA’s requirements. For example, the first request seeks “[a]ll documents identifying or referring to any staff, personnel, contractors, consultants or employees of the Task Force.” As petitioners point out, if plaintiffs are entitled to “discovery ... roughly coextensive with the available remedies for a FACA violation, then the textual exemption of advisory groups including only government officials, which presumably was designed to protect against undue interference with executive functions, has little practical effect.” Emergency Pet. for Writ of Mandamus at 14.

Plaintiffs’ discovery also goes well beyond what they need to prove, as they allege, that FACA applies to the NEPDG, i.e., that non-federal officials participated to the extent that they were effectively NEPDG members. For example, plaintiffs have no need for the names of “all ... persons” who participated in the Task Force’s activities, nor “a description of [each] person’s role in the activities of the Task Force.” They must discover only whether non-federal officials participated, and if so, to what extent. Nor do plaintiffs require “[a]ll documents identifying or referring to any staff, personnel, contractors, consultants or employees of the Task Force.” Rather, they need only documents referring to the involvement of non-federal officials.

Although petitioners did raise the question of excessive discovery in the district court, they did so in support of their plea for a “protective order relieving [defendants] of any obligation to respond to plaintiffs’ discovery.” Mem. in Supp. of Defs.’ Mot. for a Protective Order and for Recons, at 21 (D.D.C. Sept. 3, 2002) (emphasis added). As far as we can tell, petitioners never asked the district court to narrow discovery to those matters plaintiffs need to support their allegation that FACA applies to the NEPDG. Moreover, we are confident that the district court, whose pending discovery order invites petitioners to file “objections,” will, consistent with the judiciary’s responsibility to police the separation of powers in litigation involving the executive, respond to petitioners’ concern and narrow discovery to ensure that plaintiffs obtain no more than they need to prove their case.

In thus relying on the district court to protect petitioners from harm, we are following closely in the Supreme Court’s footsteps in Kerr. There, the Court affirmed the Court of Appeals’ denial of a writ of mandamus sought by a state agency challenging a district court’s order granting a motion to compel discovery. Even though “the opinion below might be regarded as ambiguous,” the Court explained, “we are fortified in our reading of it by a recognition of the serious consequences which could flow from an unwarranted failure to grant petitioners the opportunity to have the documents reviewed by the trial judge in camera before being compelled to turn them over.” Kerr, 426 U.S. at 405, 96 S.Ct. at 2125. The Supreme Court thus read the Court of Appeals’ opinion as “providing petitioners an avenue far short of mandamus to achieve precisely the relief they seek.” Id. at 404-05, 96 S.Ct. at 2124-25. “We are thus confident,” the Court concluded, “that the Court of Appeals did in fact intend to afford the petitioners the opportunity to apply for and, upon proper application, receive in camera review.” Id. at 406, 96 S.Ct. at 2125-26. We are equally confident that the district court here will protect petitioners’ legitimate interests and keep discovery within appropriate limits — or as the district court itself put it, “tightly reined discovery.” Mem. Op. and Order at 32 (D.D.C. Nov. 27, 2002).

In sum, petitioners have not satisfied the heavy burden necessary to obtain a writ of mandamus. Their legal challenges to the district court’s refusal to proceed on the basis of the administrative record and to dismiss the Vice President can be fully addressed, untethered by anything we have said here, on appeal following final judgment. In the meantime, narrow, carefully focused discovery will fully protect the Vice President: Either the Vice President will have no need to claim privilege, or if he does, then the district court’s express willingness to entertain privilege claims and to review allegedly privileged documents in camera will prevent any harm. Moreover, such measures will enable the district court to resolve the statutory question — whether FACA applies to the NEPDG — without “sweeping intrusions into the Presidency and Vice Presidency.” Emergency Pet. for Writ of Mandamus at 8. And if after limited discovery, it turns out that no non-federal personnel participated as de facto NEPDG members, the district court will never have to face the serious constitutional issue lurking in this case — whether FACA can be constitutionally applied to the President and Vice President. If, on the other hand, the district court not only determines that FACA applies to the NEPDG, but also rejects petitioners’ constitutional challenge to the application of the Act, both issues can be fully addressed on appeal following final judgment.

We end with some comments about the dissent. According to the dissent, AAPS is wrong, General Services Administration regulations preclude the de facto membership theory, the district court is without jurisdiction, and the case should be remanded with instructions to dismiss. We may not reach these issues for several reasons. To begin with, AAPS is circuit law binding on this panel. As we have explained:

The “decision of a [panel]” is “the decision of the court.” Were matters otherwise, the finality of our appellate decisions would yield to constant conflicts within the circuit. One three-judge panel, therefore, does not have the authority to overrule another three-judge panel of the court. That power may be exercised only by the full court, either through an in banc decision, or pursuant to the more informal practice adopted in Irons v. Diamond[, 670 F.2d 265 (D.C.Cir.1981)].

LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc) (internal citations omitted). See also Joo v. Japan, 332 F.3d 679, 687, 2003 WL 21473010 (D.C.Cir. June 27, 2003) (panel of judges is bound by circuit precedent).

Even were we not bound by AAPS, we could not consider the dissent’s arguments because petitioners raised not one of them — not in the district court, not in their appellate briefs, not even at oral argument. Instead, petitioners argue that AAPS is distinguishable, not wrong; they never mention the GSA regulations; and they argue that the constitutional questions can be avoided by remanding to the district court with instructions to decide the case on the basis of the administrative record. This court has long held that “[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).

Recognizing that appellate courts sit to resolve only legal questions presented and argued by the parties, the dissent maintains that we must nevertheless address these new arguments because they go to the jurisdiction of the district court. Specifically, pointing out that the only viable claim against the Vice President rests on mandamus, the dissent argues that given the constitutional concerns and the GSA regulations, plaintiffs have no “ ‘clear and indisputable’ right to relief.” Dissent at 2 (citation omitted). The defect in this argument is that it ignores AAPS. Because that decision holds that FACA permits a cause of action on the “de facto membership” theory, the district court “clear[ly]” has jurisdiction to entertain plaintiffs’ mandamus action. Plaintiffs may or may not prevail, but under the law of this circuit, the district court’s jurisdiction is not in doubt. According to the dissent’s theory, moreover, all statutory defenses to mandamus actions become jurisdictional, allowing defendants who fail to prevail on motions to dismiss to seek immediate appellate review. Nothing in our case law supports' such a result.

The arguments raised by the dissent are also premature. Following limited discovery, the district court may find, as the Knutson affidavit claims, that no non-federal personnel participated in the NEPDG’s activities. That would end the case, leaving no need to address the constitutional issues raised by the dissent. If, on the other hand, discovery reveals some degree of participation by non-federal personnel, then the district court will have to decide whether that participation amounts to de facto membership. Only if the participation in fact amounts to such membership will the court have to resolve the constitutional issue—subject, of course, to appellate review following final judgment.

The dissent contends that mandamus relief is nevertheless required because even though petitioners have made no claim of privilege, the mere need to assert privilege will “distraet[ ] and divert[ ] [the President] from the performance of his constitutional duties and responsibilities.” Dissent at 8. This argument too is foreclosed by circuit precedent. As we held in Executive Office of the President, mandamus relief is inappropriate “[a]bsent a viable claim that some important privilege will be infringed if discovery is allowed to proceed.” 215 F.3d at 24.

Finally, and contrary to the dissent, we are confident that this opinion fully responds to the constitutional arguments presented in this case. As we have explained, petitioners’ primary argument—-that the broad discovery plaintiffs seek will violate the separation of powers'—is premature. Petitioners have yet to invoke executive privilege, which is itself designed to protect the separation of powers, see infra p. 1105, and the narrow discovery we expect the district court to allow may avoid the need for petitioners even to invoke the privilege. Petitioners also argue that applying FACA to the NEPDG would itself violate the separation of powers. As we have explained, resolution of this issue is also premature, for it-assumes the answer to the question the district court has yet to resolve: Is the NEPDG a FACA advisory committee? Not until the district court answers that question and only if it determines that the NEPDG is in fact an advisory committee will that constitutional question be ripe for resolution. See Ashwander v. Tennessee Valley Auth, 297 U.S. 288, 345-48, 56 S.Ct. 466, 481-484, 80 L.Ed. 688 (Brandeis, J., concurring) (courts should only rule on constitutional issues as a last resort).

III.

The Vice President’s appeal of the district court’s denial of the motion to dismiss and discovery orders requires little discussion. In general, only final orders are appealable. 28 U.S.C. § 1291. Circuit courts have jurisdiction over interlocutory appeals if the requirements of the collateral order doctrine apply, that is, if the challenged order “finally determined claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

Largely for the reasons given above, none of the orders the Vice President seeks to appeal satisfies the collateral order doctrine. See In re Sealed Case, 151 F.3d at 1063 n. 4 (describing similarities between tests for appellate review of interlocutory appeals under mandamus and collateral order doctrine). The Vice President does not argue otherwise. Instead, he asserts that we have jurisdiction to hear his appeal pursuant to United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). There, the district court had approved subpoenas for audiotapes that President Nixon claimed were protected by executive privilege. Permitting an interlocutory appeal of this otherwise non-appealable order, the Supreme Court explained that it would be “unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government,” to require President Nixon to follow the traditional path for perfecting his appeal, namely, “ ‘resisting] ... [the court’s] order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.’” Id. at 691, 692, 94 S.Ct. at 3099-3100 (quoting United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971)).

This case is very different. Because the Vice President has yet to invoke executive privilege, we are not confronted with the “unseemly” prospect of forcing him to choose between either (1) disclosing allegedly privileged information and appealing following final judgment after the “cat is out of the bag,” or (2) refusing to disclose and going into criminal contempt in order to create an appealable order. Absent this constitutionally troubling choice, Nixon is inapplicable.

At oral argument, the government contended that applying Nixon to this ease would amount to a “modest extension.” Tr. of Oral Arg. at 5:10. We disagree. Including the Vice President’s appeal within Nixon’s ambit would convert a narrow exception designed to protect fundamental privileges into a blanket exception to the collateral order rule in suits against the executive. This court has no authority to “extend” the law beyond its well-prescribed bounds.

IV.

The petition for mandamus is dismissed and the motion to dismiss the appeal is granted.

So ordered.