IN THE UNITED STATES DISTRICT COURT
FOR
THE DISTRICT OF COLUMBIA
ASSOCIATION OF AMERICAN
PHYSICIANS AND SURGEONS, INC.
AMERICAN COUNCIL FOR HEALTH
CARE REFORM AND NATIONAL
LEGAL & POLICY CENTER,
CIVIL ACTION
Plaintiffs,
NO.: 93-399 (RCL)
v.
HILLARY RODHAM CLINTON,
DONNA E. SHALALA,
Secretary of Health and Human Services, et al.
Defendants.
_________________________________________/
PLAINTIFF’S MEMORANDUM OF POINTS AND
AUTHORITIES
IN
SUPPORT OF MOTION FOR ATTORNEYS FEES AND COSTS
UNDER THE EQUAL ACCESS TO JUSTICE ACT
Thomas R. Spencer, Jr.
SPENCER & KLEIN, P.A.
801 Brickell Avenue
Suite 1901
Miami, Florida 33131
(305) 374-7700 Tel.
(305) 374-4890 Fax
Counsel for Plaintiffs
STATEMENT OF THE CASE [1]
A. Nature of the Case on
Remand.
This case in on remand from the decision of
the Circuit Court, of appeals, D.C. Circuit which
reversed the award by this Court of $285,864.78 in attorney’s fees and
costs in favor of Plaintiff
AAPS based on the Equal Access to Justice Act (EAJA) and a finding of
bad faith.
B. Issue before the Court.
The Court of Appeals, D.C. Circuit framed the
issue to be decided by the Court as follows:
(See 187 F.3d.655 (D.C. Cir. 1998):
While our decision forecloses an award based
on the government’s alleged assertion of the federal employee exemption
(whether for bad faith or under the EAJA), the district Court may, if it finds
the evidence so warrants, award fees under the EAJA or Fed.R. Civ. P.11 based
on another asserted defense (such as the government’s argument that the working
group was not a FACA committee because it “d[id] not offer advice or
recommendations directly to the President,” JA 120, which the record suggests
may not be true, see, e.g., JA 2262).
In addition or in the alternative, the district Court may consider
assessing the sanctions (under Fed.R.Civ.P. 37) to which the Court found AAPS
was entitled in its November 9, 1993 order granting AAP’s motion to
compel. See AAPS, 837 F.Supp. at 354.
C. Statement of the Facts,
the Proceedings, and Decisions.
On January 25, 1993, President Clinton
appointed the First Lady, Mrs. Hillary Rodham
Clinton, as the Chairperson of the President’s Task Force on National
Health Care Reform. The
Task Force was charged with the responsibility of drafting and
submitting to Congress the American
Health Security Act of 1993 within 100 days from the Inauguration. (DE 1; Ex.58). Ira Magaziner
was designated to lead the advisory effort of the Task Force, the
Interdepartmental Working Group,
and its individual Working Groups.
He selected the participants with the advice of other
participants, staff, and the First Lady. (Ex. 1371,1376,2494,2500,2687)
The Working Groups
planned the policy, met with and advised the President and First Lady
and ultimately drafted the
legislation. (Ex.
1370,1382,1629,1651,1763,2255,2259,2278,2499,2509,2615,2616,2689-3725)
Various members of the Department of Justice were assigned to the
Working Groups to advise them
as their work progressed. (Ex.
2590,2683,2684,2688)
Mr. Magaziner submitted an organizational
plan to the President on January 26, 1993, laying
out a proposal to plan health care policy by utilizing a combination of
federal employees, outside
health care experts, economists, ethicists, sociologists, lawyers,
doctors, and others. (Ex. 493-
652,717,933,1344-1350,1371,2491)
Many were to come from health care organizations. (Ex. 493-
685). These persons were
tightly controlled and organized into specific Working Groups identified
by specific issues. (Ex.
926,933,1376). Most of the individual
Working Groups were organized
with other Working Groups into “Clusters”. (Ex. 493-685,733,926).
These Working Groups then
reported to Mr. Magaziner and to the President and the First Lady,
sometimes through Cluster
leaders and sometimes through representatives of the groups. (Ex. 932,
991,1025, 1382,1771, 2544,
2616, 2499, 2214, 2221, 2229, 2248, 2250, 2255, 2262).
Through an analytical process known as the
Tollgate Process, the Working Groups each
developed and submitted advisory papers, which were then subjected to
peer review and ultimately
developed into briefing books for the President and First Lady. Each working group was required
to pass the five scheduled Tollgates.
(Ex. 733, 933, 952, 955, 957, 981, 1009, 1138, 1150, 145-
1276). On January 27, 1993, the
First Lady briefed the then members of the Working Groups on the
advisory process. (Ex.
949). As the process developed in
February, 1993, numerous additional
persons were recruited from all over the country and assigned to the 41
various Working Groups and
15 Clusters, and the additional free-standing advisory groups. (Ex.
1365, 1371, 2218, 2248, 2491).
According to the First Lady, over 1,000 of these people were working on
the process by April 29,
1993. (Ex. 1458, 2210,
2682). Many of them never completed the
paperwork required by the
federal government under conflict of interest and other laws. (Ex.
616-637,683,684,685). Many were
unpaid volunteers receiving only expenses. (Ex. 657-682,1340,1529,1637-1638).
On February 9, 1993, AAPS sent a demand,
pursuant to the provisions of FACA, that it
receive notice of meetings and access to documents regarding the
proceedings and meetings of the
Task Force and its components.
(Ex. 61). In response, on
February 12, 1993, Bernard Nussbaum,
Counsel to the President, responded that FACA did not apply to the Task
Force or the Working
Groups, contending that the Interdepartmental Working Group consisted
only of “government
employees”. He also claimed
that the Task Force reviewed the information provided by the Working
Group, but only the Task Force would make recommendations to the
President. (Ex. 64). Mr.
Nussbaum referred AAPS to Mr. Steve Neuwirth or Vincent Foster in his
office for further
information.[2]
A substantial procedure was developed within
the Working Groups to maintain secrecy of
the proceedings, the names and origins of the participants, and the
development of the Plan. (Ex.
961,1378,1457,1529,1534,2247,2369,2608). Working Group members were forbidden to talk to the
Press. (Ex. 928,948,2247). Even the list of members of the Working
Groups was a closely held
secret. (Ex.
923,1457,1529). According to the White
House, this was to shield the participants from
“lobbying”. (Ex. 2484,
2463-2486, 2608).
1.
Initial
Litigation in this District Court.
On February 24, 1993, AAPS, joined by ACHCR
and NLPC, commenced this action in this
district court. (DE 1; Ex.
38). Plaintiffs sought the entry of a
temporary restraining order and a
preliminary injunction seeking compliance with the provisions of
FACA. (DE 4; Ex. 38). In
response, the government contended that the Task Force was not subject
to FACA because it was
composed wholly of full time officers or employees of the federal
government. (DE 9; Ex. 94). The
government further argued that the Interdepartmental Working Group also
was not subject to FACA
because it performed strictly staff functions for the Task Force, such
as research, and performed no
advisory functions. It
contended that only the Task Force advised the President. (DE 9; EX. 94, 120,
1763). It represented to this court in its initial papers that the
Working Groups also were composed
solely of federal
employees. (DE 8,9).
At the time the government made these
representations to the district court, and unknown
to the plaintiffs or the district court, a meeting schedule was being
set up for various members of
the Working Groups to meet with the President. (Ex. 921, 1651, 2255, 2259, 2615). Indeed,
Working Group members reflected that some of the groups or persons on
the groups were meeting
with the President during the height of Working Group activity, “every
night”. (Ex. 1382,2248,2255,
2259, 2260, 2262, 2250). In
response to this litigation, Mr. Magaziner requested that “guidelines”
be drawn up for the meetings with the President. (DE. 169;Deposition of Ira Magaziner, at 37;
Ex.
920, 1382, 1629, 2229, 2262).
To support their request for a Temporary
Injunction, plaintiffs sought discovery as to the
government’s defenses and factual representations. (DE. 7; Ex. 79,174). The government successfully resisted the
discovery requests, making representations to the Court about the prejudice
to the important work of the Task Force and its Working Groups. (DE 8; Ex. 82, 152, 157).
Moreover, allegedly to assuage the plaintiffs’ concerns, and to support
its position, the government
filed on March 3, 1993, a Declaration of Mr. Magaziner (Magaziner I)
which purported to describe
the function and composition of the Task Force and the
“Interdepartmental Working Group”. (DE
9; Ex. 130, 132). It also made
representations to the Court as to the function and activities of the
Working Groups. (DE 9; Ex. 135,
94,128). The Declaration was prepared
by the White House
Counsel’s Office (Stephen Neuwirth) under guidance from Vincent Foster,
Ms. Nolan, Mr.
Magaziner and his staff at the White House. It was reviewed by three
attorneys in the Federal
Programs Branch of DOJ Civil Division and by Associate Attorney
General, Webster Hubbell. (DE
201 at 37).
Mr. Magaziner claimed in Magaziner I that the
Working Group was charged only with
“gathering information concerning the impact of existing health care
policies and delivery services,
and possible alternatives to those policies in order to assist the Task
Force in developing
comprehensive health care reform legislation”. (Ex. 135).
He stated that while “[t]he information
that is gathered and analyzed by the working group will be used * * *
by the Task Force in
formulating its recommendations to the President,”[3]
the Working Group “is not charged with
responsibility for making, and will not make, recommendations to the
President, and will not
otherwise directly advise him”.
(Ex. 134). Mr. Magaziner also
noted that the Working Group had
been divided into a number of “cluster” groups to address specific
health care subjects, and that
several of the cluster groups had been further divided into smaller
“subgroups”. (Ex. 138).
Finally, in a sentence that became one of
many concerns to the plaintiffs, he attested that
“[o]nly federal government employees serve as members of the
interdepartmental working
group”. (Ex.135).[4] The Declaration explained that the employee
members of the Working Group
fell into two categories: (1) “full-time, permanent employees” working
for the executive branch or
congress, ibid., and (2) “special government employees” who were
“employed by an agency or the
Executive Office of the President for less than 130 days in a 365-day
period, with or without
compensation.” (Ex. 136). He claimed there were only 40 such SGEs.
(Ex. 136). In addition,
the Declaration stated that the Working Group had “retained a wide
range of consultants, who attend
Working Group meetings on an intermittent basis, either with or without
compensation”. Magaziner
represented that these “consultants”, who came from a “wide-range of
backgrounds”, did not have
“any supervisory role or decision-making authority, * * * but instead
provide information and
opinion to the Working Group members.”
Mr. Magaziner claimed that he had arranged
for the full-time permanent federal employees
to be informed “that they are subject to the conflict of interest
provisions set forth in 18 U.S.C. §§
202-209 the Standards of Ethical Conduct for Employees of the Executive
Branch; and all related
ethics laws and regulations,” (Ex. 136), and for the special government
employees and consultants
to be informed that they were subject to “a limited version” of the
same provisions. (Ex. 137).
He maintained that “[a]s of March 1, [1993], approximately 300 such
permanent employees” and
“approximately 40 such special government employees were serving as
working group members.”
(Ex. 136). He said that he was
the only member of the Task Force to attend meetings of the
Working Groups. (Ex. 139).
2.
The District
Court’s 1993 FACA Decision.
On March 10, 1993, this district court
entered a partial preliminary injunction against the
Task Force’s operations, but granted the government’s motion to dismiss
plaintiffs’ claims against
the Working Group. 813 F.Supp.
82, 95.
The district court rejected the argument that
FACA’s full-time federal employee exemption
applied to the Task Force. It
concluded that the First Lady was not an officer or employee of the
United States. 813 F.Supp. at
88. The court held, however, that to
the extent that the Task Force
directly advised the President on legislation, the Task Force was
constitutionally immune from
FACA’s requirements. Id at
92. The district court therefore
refused to enjoin Task Force meetings
“which are held for the purpose of formulating advice and
recommendations for the President.” Id.
at 95. By contrast, the court
determined that the Working Group and its various components were
not subject to the FACA because they were “gathering information and
formulating proposals to be
reported to the Task Force,” and were “not providing the Task Force
with ‘consensus advice’.” Id.
at 89. (Emphasis added). Both sides appealed.
Meetings with Cluster leaders, Working Group
members, and President Clinton occurred in
March and April 1993. (Ex. 988,
1025, 1629, 2229, 262, 2487). On March
29, 1993, the White
House released to the Press a list of FTEs, SGEs, and consultants on
the Working Groups. Over 300
FTEs, over 80 SGEs, and approximately 17 consultants were listed. (Ex. 1455, 2350-2363). (See
Ex. 1529). The work of the
various Working Groups proceeded with option papers presented to the
President in April, 1993. (Ex. 977,2528, 2531,2537,2544). In late April, 1993, in response to a
FOIA request by Public Citizen’s Congress Watch, Mr. Magaziner declared
that all records created
by the Working Groups were Presidential Records and that DOJ was tasked
to keep them from the
public. He set out the required
procedure. (Ex. 977, 1383). Various “review,” “audit,” and
“drafting” groups, part of the original Working Group plan, worked
through June 1993, refining the
options prepared by the other Working Groups. (Ex. 1341, 1342, 1352, 1631, 1651).
According to Mr. Magaziner and his secretary,
the Task Force disbanded in May, 1993 (DE.
179,180,1685, 1775), and the Working Groups allegedly ceased operations
around the same time.
(DE. 179,180, Ex. 1533,1535,1537, 1543,1575,1631) They testified that
another Working Group,
composed of some of the same people as the “Interdepartmental Working
Group” operated over the
summer of 1993, drafting the final legislative proposal. (DE. 179,180). (Deposition of Magaziner,
at 14, 59). (Ex. 1685,1651-1658, 1761, 2211).
3.
First Appellate
Proceedings.
The Court of Appeals, D.C. Circuit, held oral
argument on April 30, 1993 (Ex. 199, 306),
and reversed the district Court on June 22, 1993, holding that the
First Lady is the functional
equivalent of an officer or employee of the federal government and that
FACA therefore did not
apply to the Task Force. The
opinion stated that FACA does not apply to unstructured arrangements
in which the government seeks advice from what is only a loose
collection of individuals who do not
significantly interact with each other. The Court held that discovery was necessary to determine the
functions and operations of the Working Groups and the relationships of
so-called Special
Governmental Employees to the Working Groups. The case was remanded for further proceedings.
997 F.2d 898 (D.C. Cir. 1993).
4.
The Proceedings
After First Remand.
Immediately
after remand, the government adopted a “wandering horde” defense based on
language in the Circuit Court’s opinion. It attempted to paint the highly disciplined, highly
structured advisory process as unstructured, fluid and
disorganized. (DE. 63,73,77). Through
the
Summer and Fall of 1993, contentious discovery litigation ensued. (DE. 63,70, 71, 73, 78, 80).
Most of the documents of the Working Groups, contended to be
Presidential Records, were scattered
in various departments, and across the country with the Working Group
members. (Ex. 1972-1979).
At the same time, DOJ embarked on a strategy to make the documents
produced by the Working
Groups not subject to FOIA (Ex. 1981, 1982, 2588)[5]
and “stonewalled” plaintiffs in discovery.
(DE.
77-80, 83, 84).
On July 18, 1993, in response to discovery
motions and other assertions of the plaintiffs, Ira
Magaziner submitted a second Declaration (Magaziner II). (Ex. 302).
Among other things,
Magaziner asserted: “the interdepartmental working group was not
charged with responsibility for
making, and did not make recommendations to the President, and did not
otherwise directly advise
him.” Instead, Magaziner
asserted: The Task Force had presented to the President a comprehensive
set of proposals and options for health care reform legislation. (Ex.
302). No Task Force Report or
“comprehensive set of proposals and options of the Task Force” has ever
been made public or
produced to plaintiffs. In the
Fall of 1993, the legislation was submitted to Congress (Ex. 1759) and briefing
meetings of the Working Groups were called by Mr. Magaziner. (Ex. 1531, 1759).
On November 9, 1993, this district Court
issued Orders on the plaintiffs’ motion to compel
discovery. 837 F.Supp. 454.
(Ex. 334).
As this district Court observed, the
government had engaged in egregious tactics designed
to obstruct adequate discovery.
The government had provided incomplete information, inadequate
information and had “improperly thwarted plaintiffs’ legitimate
discovery requests.” Id. at 457. The
Court condemned the tactics, noted that certain responses were
“preposterous,” and warned that the
Court “will not tolerate it in future responses in this case.” The Court noted the importance of the
government’s argument with regard to the ethics laws. Id. at 459.
It observed that Mr. Magaziner
had taken pains to stress the fact that every member of and consultant
to the group was required to
file a financial disclosure statement and to comply with other
requirements of federal laws. The
district Court noted that plaintiffs were entitled to discovery into
the truth of the Magaziner Affidavit
on this point, as well. Id. at
456.
The district court granted the motion to
compel and awarded attorneys fees and costs, but
did not assess them. Id. at
458. (Ex. 389).
The parties continued to develop discovery,
punctuated by various motions. While
President
Clinton expected the Bill to be enacted quickly, it began to stall in
Congress. In the Spring of 1994,
both sides filed extensive motions for summary judgment. (DE.117-132). In their motion for
summary judgment, the plaintiffs sought a declaratory judgment that the
Working Groups, their sub-
groups and the other advisory groups were subject to FACA, and sought
the disclosure of the
Groups’ documents. The
government resisted this argument, contending that the Working Groups
had none of the organization or structure contemplated by FACA and this
Court. It stated that while
it had previously contended that the Working Groups consisted only of
governmental employees,
person-by-person analysis would be burdensome. It argued that the
groups were an amorphous
“horde”. Only for summary
judgment purposes did it avoid, but it did not concede, the “all
employee” exemption. (DE. 128).
Plaintiffs submitted extensive exhibits,
which they obtained through discovery and
investigation. (DE 107). Much of the material was not produced by the
government but obtained
at a tax-exempt foundation center library and through other means. (DE. 107; Ex. 471). Extensive
lists of participants were produced by plaintiffs. (DE. 107).
The government was successful in
having all agendas and minutes of the Working Groups it produced
“sealed” from public view. (DE.
86,90). Plaintiffs moved for a contempt proceeding against Mr.
Magaziner. (DE. 124).
The cross-motions for summary judgment filed
in May 1994, were heard on July 25, 1994.
(Ex. 743). In support, the
government submitted a Third Declaration of Magaziner (Magaziner
III). (Ex. 701). In it, Magaziner reiterated the position
that he had taken in the previous two
Declarations, but admitted for the first time the President had
attended “some” meetings with
members of the Working Groups.
However, he contended that no consensus advice was given
directly from any Working Group to the President. (Ex.
711,1337,2689-3726,2214, 2616).
This Court denied all motions for summary
judgment and set the case for trial.
Settlement discussions occurred, but did not result in a settlement
even though the district Court
recommended settlement to the parties.
(DE. 140, 144, 147, 189).
After the American Health Security Act bill
failed in Congress, the President decided in
August, 1994, to release some of the documents of the Working Groups
and place them for public
view at the National Archives.
(Ex. 917, 1284, 1286, 1336). At
the same time, the government
announced that it would move to have the case dismissed as moot. (DE. 154; Ex. 867). The
government also requested an expedited “ruling” by the Court that Mr.
Magaziner had not committed
a contemptuous act. (Ex.
839). The Court stated that such a
determination would require a trial
of the entire case on the merits, which was set for December,
1994. (DE. 148). It denied the
government’s motion for summary ruling on Mr. Magaziner. (DE. 157; Ex. 1387).
Thereafter, various proceedings ensued,
including additional discovery relating to
“mootness.” (DE. 152-171). The government produced various lists of
Working Group participants,
which increased in number after each hearing. ( Ex. 1287-1304, 1305-1334, 1503-1527). Finally,
a list of over 614 persons and over 400 boxes of materials were produced
by the government at the
National Archives and to the Court.
(Ex. 1389-1452, 1670-1674). Over
40 boxes of additional
materials were collected by defendants from Working Group members from
around the country
during the “mootness” arguments.
(Ex. 1978, 1980). Plaintiffs
successfully contended that the
government was not making full disclosure available to the public of
the documents which would
be disclosable under FACA. (DE.
168). In fact, the government finally
admitted (after plaintiffs
discovered Working Group documents produced after the alleged
disbanding of the Working
Groups) that it had removed from various boxes of materials supplied to
the National Archives,
certain relevant records, including those produced after May, 1993. (Ex. 1447).
The Court
conducted an extensive in camera inspection of these materials,
which was substantial (13 boxes).
(DE. 168). The government
thereupon agreed to make these removed documents public. (DE. 172;
Ex. 1670-1673). After
additional hearings (DE 173), and further public release of documents and
computer disks (Ex. 1675-1678), the Court dismissed the case as moot.
879 F.Supp. 103.
In dismissing the case, the district Court
stated that it was concerned about the defendants’
conduct during the litigation:
“The Court understands plaintiffs’
frustration with the defendants’ misconduct during the course of this
litigation and the Court intends to impose sanctions here.” 879 F.Supp. 103.
In its dismissal Order, the district Court
turned to the issue of Magaziner I, government
misconduct, and the plaintiffs’ motion for fees and costs. 879 F.Supp. 106. The district Court
observed:
Both sides agree that dismissal of this case
moots the question of possible civil contempt of Court raised by plaintiffs
against Ira Magaziner.
The Court further observed that a serious
question was raised as to whether Mr. Magaziner
had committed the criminal offense of contempt of Court, perjury and/or
making a false statement
when he signed Magaziner I on March 3, 19993 “that led this Court to
initially dismiss the claim for
records of the interdepartmental working group.” 879 F.Supp. at 107. The Court then referred the
matter to U.S. Attorney Holder and to the Attorney General for the
possible application of the
Independent Counsel Act. A
further status conference was scheduled.
(DE. 181).
After a newspaper article quoted criticism of
the district Court from the White House
Counsel’s Office (Joel Klein) for the referral to the U.S. Attorney and
for allegedly not providing
a civil contempt hearing to Mr. Magaziner, the Court on January 9,
1995, sua sponte held an in
camera conference
with plaintiffs’ counsel form DOJ, including Frank Hunger, Assistant Attorney
General and head of the Civil Division. At the conference, the district Court questioned the Attorney
General’s representatives as to whether the Court had misunderstood
their representations about
wanting to “moot” the case and avoid a civil contempt proceeding
regarding Mr. Magaziner. Mr.
Hunger announced that DOJ was no longer representing Mr. Magaziner for
purposes of the criminal
investigation, and that Charles F.C. Ruff was counsel for Magaziner. The conference was then
adjourned. (DE. 222).
On January 17, 1995, the Court held another
in camera meeting with representatives of the
U.S. Attorney and with Mr. Charles F.C. Ruff, and a separate meeting
with plaintiffs’ counsel and
the government to give Mr. Magaziner and the government another
opportunity for a civil
proceeding. The Court then
announced in Open Court on the same day that it had offered Mr.
Magaziner a civil hearing before the Court and that Mr. Magaziner had
declined. (DE. 223; Ex.
1985). This fact was widely circulated in the Press. (Ex. 1985).
On January 25, 1995, the Court
deferred consideration of fees and sanctions and stayed the case until
after the criminal investigation
was completed. (DE. 181).
On August 3, 1995, Mr. Holder presented a
letter to the Court which outlined his conclusions
concerning the criminal investigation.
(DE. 196; Ex. 1988-2006). The Court thereupon held a
hearing on August 11, 1995, regarding the Holder letter, and requested
submissions from the parties
on the issues of fees and sanctions.
(DE. 189). The Court requested
the government to provide it
with additional information regarding the preparation of Magaziner I
and various representations
made to the Court during the litigation. The Court requested further submissions from the plaintiffs.
(DE. 189;201; Ex. 2007).
As a result of comments made by the Court,
Mr. Holder felt it necessary sua sponte on
August 30, 1995, to explain his previous letter to the Court. (Ex. 2030).
In it, he indicated that
he had not intended to convey to the Court any conclusion on his part
that the government had
intended to misrepresent facts to the Court. (Ex. 2030). None of the
purportedly “extensive”
statements, the “five hour” interview with Magaziner, and interviews of
the other witnesses or other
factual materials Mr. Holder said resulted from his investigation were
provided to the Court.
5.
This Court’s
decision on Fees and Sanctions.
Finding merit in plaintiff’s position, this
Court entered an award of $285,864.78 in attorneys
fees and costs. The Court held
that AAPS was the prevailing party in this litigation and that the
position of the United States in this litigation was not substantially
justified, because it litigated in
bad faith. See 989 F.Supp.8.
6.
The Second
Appeal.
Defendants filed and successfully prosecuted
an appeal of this Court’s fees and costs award.
The Court of Appeals, D.C. Circuit held that this Court’s bad faith
findings were in error and that
the government did not really rely or argue the “all employee” defense
that the plaintiffs (and the
court of appeals) said it argued.
See 187 F.3d.655.
ARGUMENT
1.
THE GOVERNMENT
CANNOT AVOID THE APPLICATION OF EAJA BY MOOTING A CASE THROUGH TOTAL
CAPITULATION ON THE EVE OF TRIAL WHEN ITS POSITION WAS NOT SUBSTANTIALLY
JUSTIFIED.
A.
Plaintiffs Were the Prevailing Parties.
A party may be deemed “prevailing” if it
obtains a favorable settlement of the case, if it
achieves a voluntary dismissal of a groundless complaint, or even if it
does not ultimately prevail
on all issues. See Naekel v.
Department of Transp., Fed. Aviation Admin., 884 F.2d 1378 (Fed. Cir.
1989) (discharged air traffic controller who prevailed on four out of
six issues on appeal was
“prevailing party”). Moreover,
the legislative history makes clear that the term “‘prevailing party’
should not be limited to a victory only after entry of a final judgment
following a full trial on the
merits.” H.R.Rep. NO. 1418, 96th
Cong. 2d Sess. 11. Thus, to determine
whether a party has
“prevailed,” a Court should look to the substance of the litigation and
whether the merits of the claim
materially alters the legal relationship between the parties by
modifying the defendants’ behavior in
a way which directly benefits the plaintiffs. Cooper v. United States Railroad Retirement Board, 24
F.3d 1414 (D.C.Cir. 1994); F.J. Vollmer Co., Inc. v. Magaw, 102
F.3d 591, 594 (D.C.Cir. 1996).
See Green v. Bowen, 877 F.2d 204 (2d. Cir. 1989) (claimant
awarded benefits following dismissal
was “prevailing party”); See also Devine v. Sutermeister, 733
F.2d 892 (Fed. Cir. 1984) (union
awarded attorneys fees as prevailing party though consent decree
entered).
A plaintiff may be a prevailing party for
EAJA purposes where the suit has been rendered
moot by virtue of granting of the requested relief. See Foster v. Boorstin, 561 F.2d 340,
342-343
(D.C. Cir. 1977); Jones v. Lujan, 883 F. 2d 1031, 1033 (D.C.
Cir. 1989). According to Hensley v.
Eckerhart, 103 S.Ct.
1933 (1983), a plaintiff may be considered a “prevailing party” if it succeeds
on any significant issue in the litigation which achieves some of the
benefit it sought in bringing suit.
103 S.Ct. at 1939, quoting Nadeau v. Helgemoe, 581 F.2d
275, 278-279 (1st Cir. 1978); Lundin v.
Mecham, 980 F.2d
1450 (D.C.Cir. 1992); Gotches v. Heckler, 773 F.2d 108 (7th
Cir. 1985) (widow
whose benefits were canceled was the “prevailing party” where benefits
increased significantly after
lawsuit lawsuit was filed), amended, 782 F.2d 765 (7th
Cir. 1985). As this Court found here,
“[t]his total capitulation by the United States necessarily results in
the inescapable conclusion that
plaintiffs prevailed in this litigation.” 989 F.Supp. 8, 13. See Lundin 980 F.2d at 1459. See also
Montes v. Thornburgh,
919 F.2d 531, 538 (9th Cir. 1990)(“[T]he case became moot only
because
appellee’s achieved their objective, and this objective was achieved
because of appellee’s suit.”).
Accordingly, Plaintiffs were necessarily the prevailing party to this
litigation.
B.
The Government’s Position Was Not Substantially Justified.
In Pierce v. Underwood, 108 S.Ct. 2541
(1988), the United States Supreme Court set forth
the standard by which to judge the government’s position in EAJA
disputes:
[“substantially justified” does not mean] “justified
to a high degree,” but rather “justified in substance or in the main” – that
is, justified to a degree that could satisfy a reasonable person. That is no different from the reasonable
basis both in law and fact formulation. . . .
108 S.Ct. at 2550. (Emphasis
added). In fact, fees are generally
awarded only when the government
offers “no plausible defense, explanation, or substantiation for its
action.” See, Beta Systems,
Inc. v. United States,
866 F.2d 1404, 1406 (Fed. Cir. 1989) (fees awarded when government
provided no plausible defense or explanation for its position); Trahan
v. Brady, 907 F.2d 1215, 1218
(D.C. Cir. 1990).
Defendants’ position was not substantially
justified in fact or in law, and no reasonable
person reviewing the case today could conclude that the test in Pierce
v. Underwood, small’s Supra.
was met by the government. See
F.J. Vollmer, supra at 595.
Whatever the application to this case
of National Anti-Hunger Coalition v. Executive Committee, 557 F.
Supp. 524 (D.D.C. 1983), aff’d,
711 F.2d 1071 (D.C. Cir. 1983), the analysis of this case by this Court
was based upon a set of
represented facts which did not exist.
Defendants presented as a fact to this Court
that all members of the Working Group were
“federalized” and that the group was merely acting as unstructured
non-advisory federal “staff”.
These were their very first representations on March 3, 1993, and it
were relied upon by this Court
to formulate its view of the facts.
It was repeated time and again by government lawyers and Mr.
Magaziner.
The government should recognize that the
burden is on it to demonstrate substantial
justification for its position both in law and in fact. Jones v. Lujan, 887 F.2d 1096, 1098
(D.C. Cir.
1989); Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123
(3d Cir. 1993). Pursuant to 28 U.S.C.
§ 2412 (d)(2)(D), “the position of the United States” includes not only
the position taken in the
litigation, but the agency position (here the Executive Office of the
President) that made the litigation
necessary in the first place. See
Lundin 980 F.2d at 1459. See
also Hanover, 989 F.2d at 128.
This litigation was not necessary. The Working Groups were clearly a federal
advisory
committee (or committees) providing organized consensus advice and the
government’s factual and
legal position as to activities, purpose, function, organization and character
of the groups and their
utilization was misrepresented to plaintiffs, Congress, and the Courts.
The government’s position, supported by
direct representations to the Court that the Working
Groups were federal interdepartmental staff and not providing advice to
the President and First Lady,
was simply fiction. Included as filings in support of the Motion for
Sanctions, Plaintiffs have
supplied this Court with numerous examples of the advisory products of
the Working Groups-a
paradigm advisory committee.
(DE. 205, 107). This included
samples of the Briefing Books
for the President prepared by each Working Group. Also included were schedules for meetings of
the Working Groups with the President and reports on the meetings. (Ex. 2214, 2680). Ultimately,
in order to “moot” the case, the government even supplied the public
with the Briefing Books for
the President and the Tollgate Reports. (DE. 205; Ex. 2680).
The rigid procedure and structured meetings,
reporting and briefing system including the
“tollgate” process belies any possible reasonable suggestion of a
wandering undisciplined “horde”
advising the President. (Ex.
926, 1651). In fact, the picture projected
in writing to the public and
to Congress was that of an organized, disciplined, wide-reaching and
independent panel of federal
medical experts upon whom the President, Congress, and the public could
rely and have confidence
to restructure the entire health care system - 14% of the American
Economy. (Ex. 657-682, 2483-
2488).
2.
PLAINTIFF’S FEE REQUEST
This Court has previously determined that
AAPS is an eligible, prevailing party, a concept
which the government did not contest on appeal. The government also did not challenge on
appeal
the eligibility under EAJA of AAPS, or the calculation of the fee
award. Plaintiff, AAPS, did not
contest or appeal the reductions and calculations of the fee award
which was $285,864.78. This fee
request is again renewed by AAPS.
3.
THE GOVERNMENT LITIGATED IN BAD FAITH
AAPS is entitled to fees and costs under EAJA
if the Court finds that the government’s
position was not substantially justified. AAPS is entitled to some fees in excess of EAJA rates,
however, because the government litigated in bad faith. Courts will award fees under the bad faith
exception if the conduct giving rise to the sanction occurs either
before or during the litigation
process. Hall v. Cole,
93 S.Ct. 1943, 1951 (1973), American Employers Ins. Co. v. American Sec.
Bank, 747 F.2d 1493,
1502 (D.C.Cir. 1984). See also
Alyeska Pipeline Service Co. v. Wilderness
Society, 95 S.Ct.
1612, 1622 (1975). Thus, wanton or
vexatious actions occurring during the course
of litigation give rise to this common law exception. Such actions occurring during the course of
litigation give rise to this common law exception. Such actions occurring during the discovery
process have also been held to justify a shift of fees. See American Hospital Association v.
Sullivan,
938 F.2d 216, 220 (D.C. Cir. 1991).
Fritz v. Honda Motor Co., Ltd., 818 F.2d 924 (D.C. Cir.
1987).
If a party through the course of litigation
proffers a position which has no foundation in law
or fact or postulates a claim or tactic whose purpose is to harass or
obstruct the judicial process, the
Court can assume that such actions were taken in bad faith. With this determination in hand the
Court can then, utilizing the common law exception, shift fees to that
party. American Hospital v.
Sullivan 938 F.2d at
220. Here, not only did the government act in bad faith initially (by
misrepresenting facts concerning a clearly FACA committee), but in the
litigation as well.
By deliberately failing to produce all the
responsive documents requested by plaintiffs, by
failing to comply with the mandates of the discovery rules, by misrepresenting
crucial facts solely
within its possession, and by failing to correct its
mis-characterizations, the government showed its
clear intent to delay the truth finding process for purely political
purposes, harass AAPS and try to
win by tactics of attrition. This is classic bad faith.
A.
Magaziner I Was False and Cosmetically Contrived.
Upon the filing of the Complaint herein,
Plaintiffs, sought to develop a factual record to show
that FACA was being violated.
The Declaration of March 3, 1993, by (Magaziner I) was submitted
to avoid discovery and live testimony, and to manufacture a factual
basis for Defendants’ positions.
The government says (which argument was accepted by the appellate
Court) that it never “really
argued” the federal employee exemption argument for the Working Groups,
it was in fact
represented under oath to this Court.
While on March 3, 1993, Mr. Magaziner
confidently presented under oath to this Court an
interdepartmental group of federal employees organized into three neat
categories in a “staff”
scenario, the truth was really that the groups and the process were
designed not just as “fact
gathers”, but as analytical “tollgates” preparing options for the
President and First Lady through a
deliberative process leading to direct advice to and feed-back from the
President. Actually, the
Working Groups effectively drafted the Health Security Act. (Ex. 750-831).
Indeed, Magaziner told Congress through a
“handout” at a Congressional briefing that:
In the most open policy making process in
history, more than 500
people from all over the country are directly involved in developing policy
within the working groups. (Ex. 933).
(Emphasis added)?
Furthermore, the government attempted to
disguise the activities and functions of the groups
when making representation to the Court:
In their March 3, 1993, Memorandum in
Opposition to Plaintiffs’ Motion for Temporary
Restraining Order,
the government represented (F.N. 25, page 31):
If plaintiffs are concerned that working
group members have met with Mr. Magaziner, such meetings would not be covered
by FACA. All working group members,
like Mr. Magaziner, are federal employees.
Magaziner Decl.¶ 11.
Moreover they said, at page 34:
Here, the working group and its “cluster groups” gather and analyze the
enormous body of facts and opinion relating to aspects of our health care
system. Magaziner Decl. ¶¶ 5, 10, 19. The working group merely obtains and
analyzes information; it has no authority to furnish advice and recommendations
directly to the President Id. Whether or not Task Force members attend
working group meetings, because the working group does not offer advice or
recommendations directly to the President, they are not FACA committees.
Similarly, Defendants filed on
March 3, 1993, a Statement of Material Facts As to Which
There is no Genuine Dispute: (Page 3):
10. The
working group is not charged with the responsibility for making and will not
make, recommendations to the President, and will not otherwise directly advice
him.
11. The
working group, which contains approximately 340 members is comprised solely of
federal government employees.
Meanwhile, Plaintiffs, in seeking preliminary
discovery, freely admitted that:
Because of the secrecy which surrounds the
Task Force, I have no knowledge of those who
sit on the aforementioned
“interdepartmental working group” or any of the cluster groups or
subgroups . . . . (Page 3, ¶ 9), Declaration
of Brown. (DE 7, 10, 12, 13).
Plaintiffs challenged the
assertion that “only federal government employees serve as
members of the interdepartmental working
group,” See Page 3 of Declaration
of Brown, March
2, 1993.
(DE 12). Plaintiffs asserted
that they needed discovery and testimony regarding the
composition and functions of the Working
Groups. But in their Opposition to
Plaintiffs, Request
to Present Live Testimony, defendants
asserted: (March 2, Page 2) (DE 8):
On February 25, counsel for plaintiffs provided the undersigned a
written list of categories of information they regarded as relevant to the
Court’s consideration of the motion for a TRO.
As explained to plaintiffs’ counsel on several occasions since then,
defendants are preparing a comprehensive declaration of Mr. Magaziner that will
be provided in support of their opposition to plaintiffs’ motion for a
TRO. Defendants’ papers will be filed
and served by the close of business on Wednesday, March 3.
Although little of the factual information sought by plaintiffs has any
legal significance here, the declaration will provide substantially all of the
information requested by plaintiffs and will discuss the more limited categories
of information now sought in testimony.
Moreover, counsel for defendants agreed to provide plaintiffs’ counsel a
summary of the declaration by mid-day today to assure him that a full
explanation of the facts plaintiffs believe are relevant to this action will be
presented to this Court.
Under Local Rule 205(d), the Court may decline to hear live witnesses
at a preliminary injunction hearing if their need is outweighed by
considerations of “waste of time, or needless presentation of cumulative evidence.” Because the testimony sought by plaintiff
will largely duplicate the information that will be set forth in his
forthcoming declaration, no need exists for Mr. Magaziner’s cumulative
testimony.
The Court denied Plaintiffs’
request to take discovery and issued its dismissal order on the
pending motions. The Declarations of Magaziner were the only evidentiary
documents upon
which the District Court’s fact findings were
based. 813 F.Supp. 82
(D.D.C. 1993).
B. Magaziner II Was False.
In his second Declaration filed
June 18, 1993, Mr. Magaziner swore that:
The interdepartmental working group was not charged with responsibility
for making, and did not make, recommendations to the President, and did not
otherwise directly advise him.
This was completely untrue. In order to disguise the meetings of
various Working Groups
and Clusters leaders with the President, the
White House, at Mr. Magaziner’s request, drew up
“Guidelines for Meeting With the President”
sometime in February or March, 1993 Deposition of
Magaziner, page 9, (Ex. 920). This was
never disclosed to Plaintiffs or the District Court until
Plaintiffs retrieved them from Archives in
September, 1994! (Ex. 920). These “talking points” were
a thinly disguised ruse for the Working
Groups to give direct advice, but for the President and
government claim they did not. What is shocking is that someone convinced
the inner circles of the
White House, including the President, to play a charade even with
his schedule, to defeat Plaintiffs
and the public and keep what they were doing secret:
Privileged and Confidential
Attorney-Client/Work Product
GUIDELINES FOR MEETINGS WITH THE PRESIDENT
TO DISCUSS HEALTH CARE REFORM ISSUES
1.Each meeting is convened by the President.
2.The persons attending the meeting are attending in their individual
capacities, either as government officials or member of the Task Force or
working group. The persons attending
are not representing the Task Force or working group, and do not have authority
to speak on behalf of the Task Force or working group.
3.The persons attending the meeting have been invited by the
President. Neither the Task Force nor
the working group has appointed individuals to attend the meeting.
4.The meetings are for the purpose of allowing the President, at his
request, to obtain information and/or advice from the individuals
attending. The President does not seek
advice from the group as a whole, and the group does not form a consensus
opinion to present to the President.
5.No business of the Task Force or the working group is conducted at
these meetings.
6.Those present at the meeting have not been designated either a subgroup
or subcommittee by either the Task Force or the working group.
7.No documents will normally be presented to the President during these
meetings. Any documents that are
presented will not be documents produced by the working group for the purpose
of advising the President.
8.If such meetings are listed in the President’s schedule, they shall be
described as “meetings with individuals to discuss health care reform”. (Ex. 920, 2616)
Can there be any question that it was
relevant to the work of the courts that the Working
Groups were exploding in numbers in February and early March, 1993, and
meeting with and
advising the President and the First Lady in small, defined and
organized advisory groups?[6] Should
not, in an exercise of candor, the Defendants and their counsel have at
a minimum informed the
courts and the Plaintiffs of the alleged “dramatic change” in the
landscape and of the personnel?
The government’s theory of the adversarial
nature of our system is a distorted view of the
relationship between the parties, and certainly a perversion of the
expected duties of parties and
lawyers to the courts.
Moreover, it can be fairly argued that the DOJ should have an even
higher
standard of frankness, overriding the attractive political
considerations of protecting its client’s
and policy and political interests.
Complete candor in this case would have saved this Court, the
appellate Court and Plaintiffs substantial labor and funds.
Indeed, almost as soon as the appellate court
remarked that the group looked like a “horde”
and articulated the “continuum” concept and discussed “fixed
membership, structure” criteria,
Defendants changed the represented facts and adopted a discovery
strategy to fit the “horde” theory.[7] (DE 63). The government says that this is
just normal lawyering.
C.
Magaziner III Was False.
Magaziner III, filed with Defendants’
response to the motion for summary judgment
recited virtually the same history as the First and Second
Declarations, but with a vastly different
spin. It was also clearly
false. For example, Magaziner I stated that no advice was to be given to the
President by working group members.
Magaziner III painted an entirely different (although still false
and misleading picture) of the interrelationship of the working groups
and the President.[8]
Magaziner never mentioned the many meetings of different groups with
the President.[9] He did not
disclose the Briefing Books which had been prepared not for the Task
Force, but for the President
and First Lady directly. (Ex.
945,2221, 2229, 2247, 2250, 2255, 2262).
While Working Group
members had been told that their work was for the direct use of the
President, the district court was
told in Magaziner I, II and III that the Working Groups were acting as
staff to the Task Force and that
only the Task Force was to advise the President. (Ex. 2394, 2416, 2420).
At oral argument on July 25, 1995, this Court
was clearly trying to understand the work and
role of the groups:
THE COURT: But if you have some of those –
we’ll call them private people – non-full-time government employees at the toll
gate meeting, and then I take it some of those toll gate meetings resulted in
sessions where President Clinton was being briefed by some of the working group
members. So the President is in the
session as well. As I read Magaziner’s
affidavit, I thought that – MR. STERN: I don’t think – I think that Mr.
Magaziner was saying that the President was attending some task force meetings
of the First Lady’s Health Care Task Force.
THE COURT: And a working group person would
come in to brief them.
MR. STERN: It’s not –
THE COURT: Which could have been a cluster
leader who was private.
MR. STERN: The – all I can recall from the
Magaziner declaration is that he said both that the President attended some
meetings, and that also at some meetings – I don’t know if they were the same
meetings, and I am not sure it matters – but they would sometimes get briefing
from people from the working group on some particular – when there were some
particular question to be asked.
THE COURT: So it may not have been at the
same meetings where the President was present?
MR. STERN: I don’t think that the declaration
tells us that.
THE COURT: Okay.
Transcript, July 25, 1994 at 75.
What is disturbing is that DOJ had reviewed[10]
much of the documentation of the Working
Groups the summer before. (Ex.
1788, 1892, 1893, 1894, 1906 ). Why the
lawyers and their clients
permitted the Court to remain under the illusion that the Working
Groups were advising the Task
Force and the Task Force provided all the advice to the President is
another unanswered and
troubling question in this case.
Defendants knew the facts and again, just as in Magaziner I, in
Magaziner III in carefully crafted words obscuring meaning, they gave
misleading information.
(Ex. 2427, 2616).
4.
RULE 11 SANCTIONS SHOULD BE IMPOSED AS A REASONABLE INQUIRY WOULD HAVE
REVEALED THAT THERE WAS NO REASONABLE BASIS IN LAW OR FACT FOR THE GOVERNMENT’S
CLAIM.
Sanctions under Rule 11 should be imposed
only if a reasonable inquiry would have
revealed that there was no basis in law or fact for the asserted claim.[11]
If the government at the initiation of its
defense would have conducted even a cursory
investigation into the claim that the working groups were not providing
nor destined to provide
concensus advice it would have concluded that such a position was
untenable. The fact that this
investigation did not take place, is in and of itself unreasonable and
illustrative of the cavalier
attitude with which the government felt it could and did handle this
case. Since a reasonable inquiry
would have revealed that there was no basis in law or fact for the
asserted claim, sanctions under
Rule 11 are appropriate and should be awarded.
Although the failure to amend or update
pleadings upon the discovery of new information
is not itself grounds for the imposition of sanctions under Rule 11,
the continuation to advocate
positions which are discovered to be false and/or meritless does. The government almost ab initio
discovered that the contentions made by Ira Magaziner and the
government relative to the
composition and function of the working groups were false and that not
even under the most
ridiculous definition could it be argued that such groups were not
providing advice to the President.
Though Rule 11 does not impose sanctions for
failure to supplement pleadings, it does allow
for their imposition when a litigant continues to advocate legal
positions which have, with the
passage of time, proven incorrect, false and/or meritless.[12] Since discovery demonstrated that the
working groups were clearly were involved in a structured advisory
process, the government had
an obligation to stop representing and arguing that the facts were
otherwise.
The Court could impose sanctions under Rule
11 as the government failed to conduct a
reasonable inquiry into the allegations made by Magaziner, which would
have revealed that there
was no basis in law or fact for the claim assert as a result of such
allegations. Alternatively,
sanctions should be imposed under Rule 11 for the government’s
continued advocacy of a legal
position which had been proven meritless and/or false.
5.
THE DEFENDANT SHOULD BE SANCTIONED FOR THEIR FAILURE TO COMPLY WITH THE
MANDATES OF RULE 26 (e), FEDERAL RULES OF CIVIL PROCEDURE.
Rule
26 (e), of the Federal Rules of Civil Procedure, mandates that parties
supplement
discovery disclosures when a party “learns that in some material
respect the information disclosed
is incomplete or incorrect. . .”[13] This duty to supplement is present even
without a Court order
demanding compliance.[14]
Thus, it is the obligation of all parties to
cure any defects which are discovered throughout
the course of litigation. This
obligation is essential so as to limit surprise and insure a fair juridical
playing field. In its efforts
to guarantee that these goals do in fact come to pass, the Federal District
Courts are given the task of policing the overall discovery
process.
In its efforts to assure compliance under
Rule 26 (e), the District Courts have held that they
possess the inherent power to sanction violations of the Rule’s
mandates.[15] As such, even if
sanctions cannot be imposed as a result of any other statute or
regulation, the Court still possesses
the inherent power and authority to punish a non-complying party.
In the instant case, the government, had the
obligation to cure all factual defects discovered
through the course of litigation, which appeared in the sworn
statements produced by Magaziner.
As the lengthy discovery process began to take root, it became
increasingly clear that many of the
assertions postulated by Mr. Magaziner were factually incorrect. Even so, the government never
saw the need, even in light of the obligations imposed on all litigants
to cure factual inaccuracies
which come to light, to supplement or correct this disclosure.
Even more alarming is that the government
would continue to rely on these knowingly
inaccurate statements to push its legal positions forward. These actions not only delayed the
ultimate resolution of the action but also caused great expense both to
the Plaintiffs and the Court.
These dilatory actions and procedural
violations are precisely the kind of conduct which
courts should and do frown upon.[16] This is even more true when the
non-complying party is the
Federal government which appears to have failed to supplement in an
effort to unreasonably delay,
possibly to achieve some other political agenda.
It is clear from the record that the
Declarations and submissions were factually erroneous
in many respects. This reality
was known to counsel for the Defendants.
Still the government
chose to disregard these discrepancies and proceed forward in clear
violation of th Rule 26 (e)’s
requirements. Given the clarity
of the record and the authority vested in the District Courts to
punish such callous disregard, sanctions should be imposed against the
government for its discovery
violations. Such violations
could be premised on either Rule 11 or the inherent authority of the
Court itself.
CONCLUSION
This court has more than enough basis to
award EAJA fees and costs of fees and costs under
Rule 11 or Rule 26 e in this case against the government, a fact even
the court of appeals seemed
to recognize in its opinion.
Respectfully submitted,
SPENCER & KLEIN, P.A.
Attorneys for Plaintiffs
Association
of American
Physicians and Surgeons, Inc.
801 Brickell Avenue, Suite 1901
Miami, Florida 33131
Phone: 305-374-7700
Fax: 305-374-4890
By:___________________________
THOMAS R. SPENCER, JR., ESQ.
Fla. Bar No.: 121143
D.C. Bar No.: 461814
CERTIFICATE OF SERVICE
I hereby certify that I caused a copy of the
foregoing to be served this _____ day of June, 2000, on:
Thomas Millet Irvin B.
Nathan
U.S.
Department of Justice James L.
Cooper
Civil Division ARNOLD & PALMER
901 E. St.,
N.W. 555
Twelfth Street, N.W.
Washington,
D.C. 20530 Washington, D.C. 20004
Telephone: (202) 514-3313
Attorneys for Defendants
SPENCER & KLEIN, P.A.
801 Brickell Avenue
Suite 1901
Miami, Florida 33131
(305) 374-7700 Tel.
Attorney for Plaintiff
___________________________
THOMAS R. SPENCER, JR.
Fla. Bar No.: 121143
D.C. Bar No.: 461814
[1] Exhibit references are to Exhibits filed in
Support of this Memorandum and are referred to as (“Ex. pg.”).
References to the Docket are (“DE _____”).
The Exhibits, which are portions of the Record in this case, consist of
9 volumes, and are numbered sequentially by page.
[2] The
same letter was sent on February 5, 1993, to Representative William Clinger,
Committee on Governmental Operations.
(Ex. 75, 76).
[3] No
Task Force Advisory Report to the President was ever produced in public or to
plaintiffs. Instead, at least 30
Briefing Books for the President were prepared by the Working Groups. (Ex. 945-947, 1305). Two Summary Books for the President were
prepared (Ex.1306) and five Tollgate Books.
(Ex. 1305). See Ex. 961,
1768-1770.
[4] The
government successfully contended on appeal that it never really
advanced the “all employee” argument before this court. 187 F. 3d. 655 (D.C.
Cir. 1998).
[5] Mr.
Jeff Gutman who, at the time was handling this case for the DOJ, wrote on July
9, 1993, to various departments concerning this case. He wrote concerning potential FOIA requests for Working Group
documents: “To enhance our litigation position should a requestor file suit, we
offer a number of suggestions. . . .”
(Ex. 2588).
[6]
Working Group member, Pat Kery, wrote (and we have included) an
extensive diary to her boss, a Congresswoman.
It is a comprehensive, well written description of the process. On March 26, 1993 she wrote: (See Ex.
1578-1628, 2248).
The various clusters are meeting with the
President virtually every night to discuss options. (Ex. 1587).
[7] See
the following discovery responses dated August 11, 1993, (signed by Magaziner
among others) in the same document, after this court ruled:
The ‘interdepartmental working group’ was a
group of permanent or special government employees, ultimately numbering over
500, who together served an essentially staff function, gathering information
about the current health care system and developing options for its reform. (DE
63)
Defendant’s Responses and Objections to Plaintiffs First Set of
Interrogatories and Second Set of Requests, 8-11-93 at 4. (DE 63, 64)
Tabs 2 and 3 should not be considered
‘membership’ rosters. A number of
individuals listed servd as part-time or intermittent ‘consultants’ who were
regarded not as ‘members’ of the interdepartmental working group, but instead
as advisors on particular issues to specific working groups. Given the fluid
and dynamic process by which the interdepartmental working group was formed and
operated, ‘membership’ was not a significant or operative concept. Instead, Tabs 2 and 3 were compiled were
standard information forms submitted by many working group participants.
Interestingly, these “standard information forms”
have never been produced. We found
approximately 6 of them in Archives.
They were also clearly covered by discovery requests.
[8]
Plaintiffs included samples of the Briefing Books for the district court
which were used for the President and First Lady. See Memo of May 5, 1993, from Meeghan Prunty to the
Working Group members as to the format for briefing the President. (DE 205; Ex. 945, 1305, 1337, 2221, 2229,
2247).
[9] See,
for example the Memorandum from National Archives Box 1463 “Important Schedule
Changes” (Attachment 27) (Ex. 1003):
“March 22 4:00-6:00
Robyn
Stone, Mary Harahan, Susan Daniels, Debbie Lucas, Josh Wiener and Peter Kemper
will meet with President Clinton to discuss the current working group option
packages (White House).”
[10] At
least 16 members of the DOJ participated with the Working Groups. They came from a wide range of divisions of
DOJ. There was a substantial
understanding of the make up of the groups within DOJ. (Ex.2590-2591, 2684). See also Memorandum to
Stuart Gerson and Webb Hubbell, March 3, 1993. (Ex. 2683; 2688).
[11] Washington
v. Said, 812 F.Supp. 1256, 1275 (D.D.C. 1993) (Lamberth, J.) (citing Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384 (1990). See Avirgan v. Hull, 705 F.Supp. 1544
(S.D. Fla.1989) (another case involving another false affidavit which kept
another meritless case alive).
[12] Hilton
Hotel Corp. v. Banov, 899 F. 2d 40 (D.C. Cir. 1990).
[13] Rule
26 (e), Federal Rules of Civil Procedure (1995).
[14] Campbell
Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980).
[15] See Murphy
v. Magnolia Elec. Power Ass’n., 232, 234-235 (5th Cir. 1981); Outley
v. City of New York, 837 F. 2d 587, 590 (2d Cir. 1988) and Alimenta
(U.S.A.), Inc. v. Anheiser-Busch Cos., 803 F. 2d 1160, 1163 (11th
Cir. 1986).
[16] See United
States v. Excellair, Inc., 637 F. Supp. 1377 (D. Colo. 1986). There the government also dangerously played
with words and argued that it should not be sanctioned over interpretation of
language. They lost that argument.