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,
Plaintiffs, NO.: 93-399 (RCL)
HILLARY RODHAM CLINTON,
DONNA E. SHALALA,
Secretary of Health and Human Services, et al.
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
Miami, Florida 33131
(305) 374-7700 Tel.
(305) 374-4890 Fax
Counsel for Plaintiffs
STATEMENT OF THE CASE 
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
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,” 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). 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, , 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) 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
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.
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.
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-
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
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? 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. (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.
Magaziner never mentioned the many meetings of different groups with the President. 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 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.
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. 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. . .” This duty to supplement is present even without a Court order
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. 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. 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
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.
SPENCER & KLEIN, P.A.
Attorneys for Plaintiffs
Association of American
Physicians and Surgeons, Inc.
801 Brickell Avenue, Suite 1901
Miami, Florida 33131
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
Miami, Florida 33131
(305) 374-7700 Tel.
Attorney for Plaintiff
THOMAS R. SPENCER, JR.
Fla. Bar No.: 121143
D.C. Bar No.: 461814
 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.
 The same letter was sent on February 5, 1993, to Representative William Clinger, Committee on Governmental Operations. (Ex. 75, 76).
 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.
 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).
 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).
 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).
 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.
 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).
 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).”
 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).
 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).
 Hilton Hotel Corp. v. Banov, 899 F. 2d 40 (D.C. Cir. 1990).
 Rule 26 (e), Federal Rules of Civil Procedure (1995).
 Campbell Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980).
 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).
 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.