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Association of American Physicians and Surgeons, Inc.
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Omnia pro aegroto

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ASSOCIATION OF AMERICAN PHYSICIANS )
AND SURGEONS, INC et al., )
)
Plaintiffs,)
)
)
v.)Civil Action No. 93-99 (RCL)
)
HILLARY RODHAM CLINTON, et al.,)
Defendants.

 

DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO PLAINTIFFS' MOTION FOR
ATTORNEYS FEES AND COSTS UNDER THE EAJA

Preliminary Statement

Following the Court of Appeals' definitive rejection of their previous lengthy efforts to sanction defendants, plaintiffs, using their familiar tactics of exaggerated rhetoric and accusation unencumbered by fact, once again ask this Court to impose sanctions in the form of attorneys fees. Rather than relying on the employment status of working group participants, the focus of their earlier efforts and a matter categorically foreclosed by the Court of Appeals, plaintiffs now repeat their earlier claim that the Task Force process was an elaborate sham to enable secret meetings between select working group participants and the President, contrary to defendants' representations. Their efforts to label those representations as bad faith and a basis for sanctions are even less substantial than their prior efforts regarding the employment status of the working group, efforts which the Court of Appeals has ruled to be insufficient to sustain plaintiffs' burden. Their current efforts should fare no better. Plaintiffs' motion should be denied.

Factual Background

This is the fourth time in this Court that plaintiffs have attempted to show that the working group directly advised the President, and the second time that plaintiffs have alleged this to be a basis for a finding of bad faith.

Plaintiffs first argued that defendants had incorrectly represented that the working groups did not advise the President in opposing defendants' motion to dismiss this case as moot. See Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss, pp. 16-17 (Sept. 26, 1994) . Citing many of the same documents cited in their most recent iteration of this argument, plaintiffs alleged that working group participants directly advised the President and that this precluded records of such alleged meetings from being Presidential records.1


1Compare Attachment A to that memorandum with Pl. App. 1282 ("MEETING SCHEDULE WITH THE PRESIDENT"); 1763 (Memo to Ira Magaziner from Jennifer Klein); 920 ("GUIDELINES FOR MEETINGS WITH THE PRESIDENT TO DISCUSS HEALTH CARE REFORM ISSUES"). Defendants responded to this argument by showing that the Presidential Records Act was applicable regardless of whether the working group directly advised the President, contrary to plaintiffs' position. Defendants' Reply brief, p.7, n.6 (Oct. 5, 1994) .

Plaintiffs were then permitted discovery concerning mootness and chose to conduct only limited discovery in the form of three depositions, including that of Mr. Magaziner. Plaintiffs directed virtually no questions to Mr. Magaziner concerning whether the working group or any of its participants met with the President.2 On cross-examination, however, Mr. Magaziner explained that plaintiffs' previously-stated theories of secret working group meetings with the President were incorrect:

Q: As far as - let me see if I can direct your attention to Exhibit 8 which referred to some plan (sic) meetings with the President. You discussed those meetings in your direct testimony.

Why did those meetings occur?

A: The President was interestea in becoming more educated on some of the areas of health care and he asked me if he could meet with some of the experts we had brought together and who were working on the health care proposal just to kind of kick around ideas and help him become more educated in some of the areas.

* * *

' I believe you said in your direct examination that these were not Working Group meetings. What did you mean by that?

A: That's correct. The Working Groups were producing opt ion materials to be considered by the Task Force and we had a kind of set process for this to occur.


2 Plaintiffs asked only whether Mr. Magaziner could identify the documents entitled "MEETING SCHEDULE WITH THE PRESIDENT" and "GUIDELINES FOR MEETINGS WITH THE PRESIDENT TO DISCUSS HEALTH CARE REFORM ISSUES." While unable to recall specifics about the documents themselves, Mr. Magaziner did state on direct that the documents referred to "meetings that we were going to have with the President to make sure that they were conducted properly." Magaziner Dep. at 37.

This set of meetings with the President were not designed to do that, that is present options. They were more to informally meet with experts in different areas and kick ideas around. We were very concerned that the process that we has set up with the Working Groups and the Task Force maintain its integrity. For example, the people who might have been at some of these meetings were - might have been a couple of people who were participating in Working Groups, but they were a very small percentage and we didn't want other members of the Working Groups to feel circumvented and things of that sort.

And we wanted to be true to the process of the working groups only working with the Task Force. So these were not full meetings.

Magaziner Deposition, pp. 55-57. As to why there were formal "Guidelines" for these informal meetings, he explained that they resulted from consultation with counsel:

Because I knew there was a lawsuit pending and I wanted to be sure that these kind of informal meetings that the President wanted were done proper and didn't in any way go against what was legally proper for such meetings.

So I wanted their advice on whether there was any problems with the meetings going ahead, and any guidelines in terms of those issues.

Id p. 57.

Following this discovery, plaintiffs represented that no additional discovery was needed and the Court ordered final briefing on mootness. Order, Oct. 28, 1994. Plaintiffs then submitted a supplemental brief on mootness on November 1, 1994, once again reiterating their claim that the working groups met with the President "every night." Plaintiffs' Supp. Mem. in Opposition to Motion to Dismiss for Mootness, pp. 7-8, n.9. Once more, plaintiffs submitted several of the same documents relied upon in their present motion in their efforts to show that the working group directly advised the President, as part of their efforts to show that defendants had failed to produce all working group documents.3

Following this round of briefing and in camera review of certain withheld documents, the Court found that the case was "almost moot," and ordered defendants to provide an index for the withheld documents. Memorandum and Order, p. 1, December 1, 1994. The Court also rejected plaintiffs' attempts to show that the scope of defendants' document production was too limited, finding that their attempts to prove that the working group's membership and scope were much broader was based on a "flawed methodology." Id., p.6.

In lieu of indexing, defendants elected to produce the previously-withheld documents and, as a result, the Court dismissed the merits of this case as moot on December 21, 1994. Noting that plaintiffs had the opportunity to take discovery on the scope of defendants' production of documents, the Court found that plaintiffs had failed to show that any documents remained.


3 Attachments to this brief included "MEETING SCHEDULE WITH THE PRESIDENT, " (Pl. App. 1382); "GUIDELINES FOR MEETINGS WITH THE PRESIDENT TO DISCUSS HEALTH CARE REFORM ISSUES," (Pl. App. 920); the memo from Jennifer Klein to Ira Magaziner (Pl. App. 1763); and the May 5, 1993 memo from Meaghan Prunty and Judy Whang to the working group Pl. App. 945).

Memorandum and Order, p. 2. The Court then referred plaintiffs' allegation of perjury concerning Mr. Magaziner's prior declaration concerning the composition of the working group to the United States Attorney.

After the United States Attorney found no basis upon which to initiate a criminal proceeding, the parties addressed plaintiffs' motion for fees and sanctions. Again, plaintiffs repeated their earlier claim that, in addition to the issue of the employment status of the working group, the working group had directly advised the President and that defendants' representations to the contrary were sanctionable.4

In response, defendants pointed out that the Court had already rejected this claim in the context of plaintiffs' arguments that the scope of the document production was too limited. Defendants' Surreply, p. 30, Dec. 13, 1995. Defendants also pointed out that, as early as May, 1994, defendants had stated that working group participants were present at preliminary meeting with the President and others and that working group participants were also present as Task Force staff at meetings attended by the President. Surreply, pp. 30-31;


4 Indeed, their current memorandum, pp. 22-25, is virtually identical to their earlier argument, Plaintiffs' Mem. in Support of Motion for Fees and Sanctions and Response to Submission of Defendants, Nov. 6, 1995, pp. 40-44, as well as their appellate brief. Brief of Plaintiffs-Appellees, pp. 27-34. Indeed, their nine volume appendix appears to be identical to their appellate appendix.

Third Magaziner Declaration, 26-28, May 4, 1994. Defendants noted then that the working group prepared papers and briefing books which assessed the potential impact of key policy choices which would ultimately be made by the President. Third Magaziner Dec., Para. 23. Defendants also pointed out that the only record evidence in this case showed that several informal meetings between the President and some working group participants did occur to "kick around" some ideas and that Mr. Magaziner received advice on how to structure those informal chats to avoid legal difficulties. Defendants further pointed out that some of the documents cited by plaintiffs demonstrated those facts. See, e.g.' GUIDELINES FOR MEETINGS WITH THE PRESIDENT TO DISCUSS HEALTH CARE ISSUES. As to the isolated references in documents pertaining to "advice" and "recommendations" to the President, defendants demonstrated that such references were fully consistent with the working group's function of preparing briefing books for, and interacting with, the Task Force. Surreply. p. 32.

In ruling on plaintiffs' motion for sanctions, the Court found that defendants had acted in bad faith, based on its conclusion that the First Magaziner declaration was incorrect in its description of the composition of the working group. 989 F. Supp. 8, 11 (D.D.C. 1997) . It therefore awarded attorneys fees and costs in excess of the statutory cap in the Equal Access to Justice Act, under the bad faith exception, after taking reductions for improper charges and expenses.

On review, the Court of Appeals held that the finding of bad faith based upon the First Magazine Declaration's statements concerning the composition of the working group was "inadequately supported." 187 F.3d 655, 662. It held that a further award based on this issue was foreclosed, but that the district court could consider awarding fees on another basis, including the issue of whether the working group ever directly advised the President.5

Argument

Plaintiffs ask the Court to award the same fees and costs previously awarded by this Court. They alternately invoke the EAJA, the bad faith exception to the American Rule, Rule 11 and Rule 37. Ultimately, however, all of their arguments devolve to one fundamental claim, that the entire health care review process was a sham, that it was convened to allow the working group to provide advice and recommendations directly to the President, and that defendants were not justified in arguing to the contrary. In so doing, plaintiffs gloss over a number of issues and ignore applicable law in rearguing their charges of deception for yet


5Specifically, the Court of appeals noted that the record suggested the possibility that the working group may have directly advised the President, citing the document contained in Pl. App. 2262. As we show infra, that document is fully consistent with defendants,' representations.

another time. Because it is the basis for all of plaintiffs' claims, we again address plaintiffs' claim that the working group directly advised the President. We then review their asserted entitlement to fees under the bases they cite.

I. The Working Group Did Not Directly Advise the President

Consistent with their previous attempts to show that every name mentioned on any working group document was a working group participant, plaintiffs now argue that every scrap of paper showing any contact with the President, whether direct or indirect - as well as papers without any references - somehow shows that the working group directly advised the President and that the Task Force, with ostensible responsibility for formulating recommendations to the President, was a sham. Indeed, when faced with direct and uncontroverted evidence that defendants were careful to limit interact ions of the working group to comply with all applicable laws, plaintiffs resort to their familiar tactic of claiming, without a shred of evidence, the existence of a massive cover-up, thereby seeking to transfer to defendants the burden of disproving their unfounded claim. As the Court of Appeals ruled1 plaintiffs' burden, at least in proving bad faith, is one of clear and convincing evidence, a burden that cannot be satisfied by mere accusation. Nevertheless, we will again review why plaintiffs' allegations are simply unfounded.

As the Court will recall, it has never been defendants' Position that the working group was hermetically sealed such that its members or work product were never in contact with the President. Rather, defendants have always maintained that the working group's role was to research and present policy options to the Task Force, which, in turn, made recommendations to the President. Thus, individual working group participants could have had contact with the President in the context of preparation for Task Force activities, Task Force meetings, or in informal gatherings held at the President's request. As Mr. Magaziner explained in his Third Declaration, filed in May 1994:

27. I attended all of these Task Force meetings and the President also attended a small number of them. A few working group members attended some of these meetings as well, to serve as a resource to answer questions. At the meetings, Task Force members asked me on a number of occasions to obtain additional information for the Task Force's consideration. I, in turn, called on working group participants to obtain the needed information or to examine issues discussed at the Task Force meetings. Working group members provided the requested information to me and I shared it with the Task Force.

28. In March and April, prior to these Task Force meetings, the President and Vice-President convened several preliminary meetings to discuss health care reform. Changing groups of Cabinet members and senior White House officials, some of whom served on the Task Force, and different working group members attended these meetings. The working group members in attendance provided information, answered questions and reported on their efforts to develop a range of policy options. The working group members received input and guidance on the issues to be addressed in their tollgate papers."

And, as noted previously, Mr. Magaziner also explained in his deposition that, at the President's request, certain working group participants were invited to meetings to the President to discuss ideas, not as representatives of the working group, but as knowledgeable persons. Magaziner Dep. at 55. Mr. Magaziner's executive assistant at the time, Marjorie Tarmey, also confirmed that some senior persons on the working group were invited to a separate meeting with the President outside of the context of the working group. Tarmey Dep. at 78. Several of the documents cited by plaintiffs confirm this.6 Indeed, Mr. Magaziner testified that he was concerned that those working group participants who did not take part in these meetings not fell "circumvented," and he took steps to prevent that from happening. Magaziner Dep. at 56-7.7

Because of the pendency of this action, which questioned the legality of the entire process, Mr. Magaziner obtained advice from counsel as to how to best accommodate the President's desire


6See Pl. App. 2229 (attributing to "Ira" a description of these planned meetings as "[i]nteractive discussion meetings -expose [President] to expertise - expose us to things he's been thinking about.").

7 This context, of assuring working group members not feel circumvented, fully explains the reference cited by the Court of Appeals. That document, Pl. App. 2262, cites "IM" as saying to a group of working group participants that "[t]here is no small group in a small room. ... This [the working group] is the process. The President and Mrs. Clinton have requested to begin meeting with small groups of representatives of workgroups."


for informal sessions with the ongoing Task Force/working group processes. Magaziner Dep. at 57. The resulting GUIDELINES stressed that attendees could do so only in their personal capacities, not as representatives of the working group. Pl. App. 920.

Thus, it is hardly surprising, and not evidence of bad faith, that plaintiffs can cite documents which show that certain members of the working group met with the President.8 Nor, given its role as staff to the Task Force, is it surprising that the working group's work product was available to the President in the form of background briefing books.9 These facts hardly show that the Task Force process was a sham to conceal secret meetings between the working group and the President. Nor is it surprising that a Task Force comprised of the First Lady, six


8 Pl. App. 1382 ("MEETING SCHEDULE WITH THE PRESIDENT"); 1629 (meeting by "certain members" of the LTC group with the President) ; 1763 (listed persons from groups to meet with the President) ; 2262 (notes attributing to "IM" that the President asked for meetings with small groups from the working group); 2255 (noting a meeting by the author with the President); 2259 (noting a scheduled Presidential meeting); 1025 (same) ; 932 (transmitting working group documents to White House records office, referencing briefing for President) ; 2247 ("members of various task forces meeting with the President") ; 1003 (memo noting by named persons with President).

9 Plaintiffs simply point to evidence that this process, previously described by defendants, actually occurred. Pl. App. 2248 (reference to briefing book for President) ; 2250 (comments on paper for President and First Lady); 2616 (draft briefing paper for President and First Lady labeled "Discussion Draft for Illustrative Purposes Only"); 945 (reference to briefing books for President and First Lady) .


Cabinet Secretaries, and five senior government officials did not drop their many other official duties to personally write detailed briefing books and other materials and, instead, utilized the working group to do so. That plaintiffs can now, seven years later, find records indicating that the working group performed those functions is equally unsurprising.10 At the same time, other documents cited by plaintiffs actually confirm defendants' representations -- that it was the Task Force that had the ultimate decision-making authority to present to the President the recommendations that formed the basis for the President's health care reform plan, finalized and submitted to Congress four months after the Task Force and working group had disbanded. See Pl. App. 2689, et seq.11


10One document does expressly reference "recommendations" of one working group being presented to the President, but that document was written in January 1994, and it is not clear what "recommendations" refers to and who presented those recommendations to the President. See Memorandum "For the Record"-- Summary Memo/The Health Care Reform Task Force -- Workgroup 12 from Fitzhugh Mullan, M.D., Assistant Surgeon General, Department of Health and Human Services (Jan. 24, 1994), PI. App. 2614.

11Other documents cited by plaintiffs for their argument that the working group reported directly to the President simply do not support their argument. Pl. App. 1370 appears to be a draft index for a Tollgate document. Pl. App. 1651 simply refers to a briefing by Mr. Magaziner of former working group participants. P1. App. 2499 and 2509 contain suggestions from the authors for meetings with members of Congress. Other documents cited, Pl 991, 1771, and 2221, appear simply irrelevant.


In short, plaintiffs' most recent attempt to revisit this issue differs only in volume from their prior attempts. Their recycled claims and tactics should be rejected.

II. Plaintiffs Have Failed to Show Bad Faith

Plaintiffs claim that they are entitled to the full amount of this Court's original fee award under the EAJA, including fees in excess of the EAJA cap, because defendants are guilty of bad faith, this time because defendants allegedly improperly asserted that the working group did not directly advise the President.12 As the Court of Appeals held in this case, plaintiffs bear the burden of proving their claims of bad faith by clear and convincing evidence. As discussed above, they have failed to meet this standard.

In reversing the initial award of fees based on alleged bad faith, the Court of Appeals stressed that "the substantive standard is 'stringent' and 'attorneys' fees will be awarded only when extraordinary circumstances or dominating reasons of fairness so demand.'" 187 F.3d at 659 (citations omitted). Implementing this high standard, the Court of Appeals held that a party claiming bad faith must provide clear and convincing evidence to prevail:


12 Plaintiffs also still appear to argue their claim that defendants improperly argued that the working group was comprised of full time federal employees. Pl. Br. at 22-23. The Court of Appeals, however, was ruled that its "decision forecloses an award based on the government's alleged assertion of the federal employee exemption (whether for bad faith or under the EAJA)...." 187 F.3d 662.

Further, the finding of bad faith must be supported by "clear and convincing evidence," see Shepard v. American Broadcasting Cos. Inc., 62 F.3d 1469, 1476-78 (D.C. Cir. 1995) , which "generally requires the trier of fact, in viewing each party's pile of evidence, to reach a firm conviction of the truth on the evidence about which he or she is certain." United States v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994)

Id. (emphasis added). Applying this standard, the Court must "give the benefit of the doubt to the defendant." Montague, 40 F.3d at 1255.

Plaintiffs' "evidence" is insufficient on its face even to support their claim, and hardly enables the Court to conclude with any certainty, as plaintiff claim, that the entire Task Force process was a sham and that the working group reported directly to the President. Plaintiffs' claim of bad faith rests entirely on inferences from unauthenticated and out-of-context documents, which, as discussed above, are either consistent with the process as described by defendants throughout this case, irrelevant, or directly contrary to plaintiffs' arguments.

Indeed, faced with direct testimonial evidence from Mr. Magaziner and contemporaneous documentary evidence, such as the GUIDELINES, which refutes their claims, plaintiffs' sole response is to call the first a lie and the second a cover-up. Epithets, however, are no substitute for evidence.13


13 Plaintiffs' lack of evidence provides no excuse for further discovery at this late date. Plaintiffs had a full opportunity to take discovery on the issue~of alleged working group meetings with the President during the earlier phase of this case and represented to this Court that no further discovery was needed. Order, Oct. 28, 1994.

Rather, under the "clear and convincing" burden of proof, where evidence is disputed, the Court must "put that evidence in the defendant's pile." Montague, 40 F. 3d at 1255.

At best, plaintiffs' evidence to support their claim on this issue is even less substantial than that which the Court of Appeals rejected regarding the previous finding on the composition of the working group. While we will not review the substance of plaintiffs' prior claim that the working group included members who were not federal employees, suffice it to say that even defendants conceded that the difficulties of proof made pursuing that defense untenable. Even as to that claim, however, the Court of Appeals found that the previous finding of bad faith failed to meet the clear and convincing evidence standard, in part, because there was no evidence that the drafters and signer of the Magaziner Declaration "disbelieved" its representations, 187 F. 3d at 661, or "intended to mislead the court...." Id. at 662. Conspicuously absent from plaintiffs' brief and nine-volume appendix is any evidence of an intent to mislead this Court on this matter. Without such evidence, plaintiffs' claim of bad faith must fail.

III. Plaintiffs' Claims for Fees Under the EAJA Should be Denied or Reduced

This Court previously awarded plaintiffs fees and costs under the EAJA of $285,864.78, finding that defendants were not substantially justified in their defense of this case and that plaintiffs were entitled to hourly fees above the EAJA cap until August, 1994, because defendants had acted in bad faith. Both findings were predicated on the Court's conclusion that defendants' representations concerning the composition of the working group were erroneous. The Court of Appeals' decision on that issue, however, expressly "forecloses an award based on the government's alleged assertion of the federal employee exemption." 187 F.3d at 663. This Court must therefore review the issue of substantial justification anew, without reference to or regard for the prior bad faith findings. Such a review shows that defendants' position was substantially justified. Even if this Court disagrees, however, the Court of Appeals' decision requires that the prior award be reduced for plaintiffs' pursuit of the now-foreclosed claim.14

Under the EAJA, a plaintiff may not recover fees if the defendant's position was substantially justified. "[I]f a reasonable person could think it correct," Pierce v. Underwood, 487 U.S. 552, 560 (1988), a defendant's position must be deemed


14 We previously argued, unsuccessfully in this Court, that plaintiffs failed to prevail on their claims that the Task Force was subject to the FACA, and that plaintiffs' refusal to settle unnecessarily protracted this litigation, contrary to 28 U.S.C. §2412(d) (1) (E) . While we continue to adhere to those positions and believe them to remain open on remand, we rely on our prior argument as to those issues.

substantially justified "even though it is not correct." 487 U.S. at 566, n.2. Even if the government's position proves untenable, EAJA fees may not be awarded unless the government "had no reasonable basis for taking the position it took." Public Citizen Health Research Group v. Young, 909 F.2d 546, 552 (D.C. Cir. 1990) . See also Natural Resource Defense Council v. Jamison, 815 F. Supp. 451, 453 (D.D.C. 1992)

Plaintiffs' sole contention on this issue is that defendants' position that the working group served as stafff function was inaccurate and that the entire Task Force structure was a snam to mask the "organized, disciplined" operations of the working group. 15 As shown above, it was entirely reasonable for defendants to maintain that the Task Force was not an elaborate facade to mask the secret operation of the working group. Indeed, the Task Force, consisting of senior government officials, met on numerous occasions in the Spring of 1993 to


15As the Court knows, the notion that the working group was organized or disciplined is absurd. Plaintiffs' opportunistic advocacy can be seen by contrasting their current characterization of the working group as organized and disciplined with their prior portrayals of its irregular nature. See, e.g., Plaintiffs' Supplemental Memo. on Mootness at 5 (failure to maintain adequate membership or attendance records) ; 6 (failure to account for records) ; 7 ("lack of meaningful record-keeping") ; 11 (failure to document nature of meetings) ; 12-13 (failure to maintain adequate financial records) . Indeed, plaintiffs' latest briefs puts on and sheds characterizations when convenient. Cf. Pl. Mem. at 20 (working group was designed to be expert panel in which public could have confidence) with 4-5 (identities of working group participants deliberately kept secret)

develop recommendations to the President. Third Magaziner Dec. 26. That plaintiffs can find isolated references to meetings between the President and working group participants is hardly surprising, inasmuch such informal meetings did occur outside the Task Force/working group process and care was taken to insure that those meetings were not working group sessions. Similarly, as discussed above, that plaintiffs can point to isolated documents showing that the working group was used to prepare materials for submission to the President is entirely consistent with its role as staff to a Task Force composed of high-level government officials. Indeed, if plaintiffs' theory that the Task Force was a sham and that the working group directly advised the President is credited, the only surprising fact would be that plaintiffs can find so few references to support their argument. Defendants were therefore substantially justified in arguing that the working group did, indeed, serve as staff to the Task Force and did not directly report to the President. 2. Even assuming that the Court were to disagree and hold that defendants were not substantially justified, the prior award must necessarily be reduced. First, without any showing of bad faith, plaintiffs are not entitled to fees in excess of the EAJA cap. Action on Smoking and Health v. C.A.B., 724 F.2d 211, 217 (D.C. Cir. 1984). The Court's prior award allowed for fees in excess of the cap until August, 1994. Those fees must be reduced.16

Second, the Court of Appeals has foreclosed any award, even under EAJA, based on plaintiffs' claim that the working group was not comprised of federal employees. 187 F. 3d at 663. Following the first remand in this case, it is indisputable that, apart from the settlement efforts and the litigation over mootness, virtually all of the time expended by plaintiffs' counsel in this case pertained to their claim that the working group was nor composed of federal employees and their efforts to sanction defendants for their alleged misrepresentation of that fact. As we noted originally, a plaintiff is not entitled to fees for claims which were unsuccessful. Hensley v. Eckhart, 461 U.S. 424, 435 (1983); Raton Gas Transmission Co. v. F.E.R.C., 891 F.2d 323, 331 (D.C. Cir. 1989) . While this Court declined to parse plaintiffs' claims previously for purposes of determining the amount of the fee award, 989 F. Supp. 8, 14 (D.D.C. 1997), the Court of Appeals has squarely ruled that no award may be made under the EAJA for plaintiffs' claims regarding the composition of the working group.


16 We calculate this reduction to be $15,296.10. This amount would be reduced to $13,395.42 if the Court further eliminates plaintiffs' fees for their claim that the working group was not comprised of federal employees.

This issue was the focus of plaintiffs' motions for summary judgment and for contempt against Mr. Magaziner.17 We calculate that a minimum reduction for plaintiffs' claim regarding the status of the working group to be $93,282.32. 18

IV. Plaintiff's Claim for Rule 11 Sanctions Must Be Denied

Plaintiffs' claim for Rule 11 sanctions is also based on their assertion that the Task Force process was a sham and that the working group reported directly to the President, a claim responded to above. As with their prior Rule 11 motion, this current motion is procedurally defective. Perhaps even more importantly, their rhetorical excess fails to show a Rule 11 violation.

Rule 11(c) (1) (A) requires that, prior to filing a motion for sanctions, a party serve that motion on the opposing party and to not file the motion in Court for 21 days. As with their prior Rule 11 motions, plaintiffs have once more ignored this requirement. The importance of this requirement cannot be


17 As the Court knows, the same membership issue was also the focus of the mootness phase of this case. As the Court has already denied our request to discount plaintiff's fee petition for that issue, we have not included it in our current discount calculation for the membership claim.

18 This amount includes all identifiable fees for these pleadings by Brown & Brown, then- lead counsel, and the Health Hotline, which researched and prepared the Affidavit of Genevieve Young, to accompany these pleadings. It does not include an amount for Webster, Chamberlain, then-local counsel, because their bills do not identify their hours by pleading or subject, and, as local counsel, were unlikely to have spent significant time on this issue.


overstated, as the focus of a Rule 11 inquiry is the reasonableness of a representation at the time it was made, not what a court later concludes to be true. Hilton Hotels Corp. v. Banov, 899 F.2d 40, 44, n.7 (D.C. Cir. 1990); Threaf Props.. Ltd. v. Title Ins. Co. of Minn., 875 F.2d 831, 835 (11th Cir. 1989). Indeed, even where a representation is found to be inaccurate, Rule 11 does not require a prior filing to be withdrawn or corrected. Hilton Hotels, 899 F.2d at 44, n.6. See also Def. Mem. in Response to Court's Inquiries, 10/5/95, pp. 30-32 and cases cited therein.

Without identifying any particular statement, plaintiffs appear to argue that defendants were never justified in representing that the working group served as staff to the Task Force and consistently advised the President directly:

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.

Pl. Brief. at 30. This statement is startling in its temerity, if not itself sanctionable, for several reasons. First, despite the conclusion by the Court of Appeals that there is a complete absence of evidence to support their assertion, plaintiffs nevertheless repeat again their now-discredited claim that the Magaziner declaration's statements concerning the composition of the working group was known to be false when made. Second, the Court of Appeals has unequivocally stated that this issue is no longer open on remand. Third, the assertion that defendants knew that the working group directly advised the President from the outset bears no citation to the record, perhaps for the now-apparent reason that none exists.

We do agree with plaintiffs that "discovery demonstrated that the working groups were clearly involved in a structured advisory process," Pl. Brief at 30, albeit a structure which included a deliberately fluid working group functioning as staff to the Task Force, including the preparing of background papers or other materials at the direction of Mr. Magaziner or other members of the Task Force. Indeed, as discussed above, discovery developed precisely that process and revealed that, when the President requested to meet directly with some working group participants, care was taken to insure that those occasions were not part of the overall process and that working group participants who did not engage in those informal meetings did not "feel circumvented." Magaziner Dep. at 57. Plaintiffs have simply failed to demonstrate any right to sanctions under Rule 11.

V. Plaintiffs' Motion for Sanctions Under Rule 37 Is Baseless

Plaintiffs' final argument is that they are entitled to fees for the entire litigation under Rule 37 for defendants' alleged improper assertion that the Task Force was a sham. Plaintiffs' argument has absolutely no foundation.

Rule 37 applies to discovery sanctions, not to pleadings, declarations, or argument. Plaintiffs do not identify any discovery response which was improper or incorrect. Cf. Local Rule 107(b) (requiring a party filing discovery motion as to unfiled discovery to recite the specific inquiry and response) Absent the identification of a specific response alleged to have been improper, Rule 37 does not apply. Similarly, to the extent plaintiffs allege that defendants failed to supplement a discovery response, it is incumbent on them to identify it before defendants can be expected to respond.19 Rule 37 is simply irrelevant to plaintiffs' motion.20

Conclusion

Plaintiffs' prior attempts to utilize the same tactics against defendants' to obtain sanctions have been judged by the Court of Appeals to be legally and factually deficient. Their repetition here is even less substantial. Plaintiffs' motion should be denied


19 The cases cited by plaintiffs do not support the proposition that Rule 37 sanctions can be granted outside the scope of specific discovery requests. Murphy v. Magno1ia Electri Power Ass'n, 639 F.2d 232 (5th Cir, 1981) (failure to supplement interrogatory answers; (Alimenta (U.S.A.), Inc. v. Anheuser-Busch Companies, Inc., 803 F.2d 1160 (11th Cir. 1986) (same); Outley v. City of New York, 837 F.2d 587 (2d Cir. 1988) (same); Campbell Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980) (sanction for improper ex parte contact with opponent's expert witness)

20 We understand the Court of Appeals' reference to Rule 37, in discussing the scope of the remand, 187 F.3d at 663, to mean the reduction of the previously-awarded discovery sanction by this Court to an amount, not an invitation to the kind of misuse of Rule 37 proposed by plaintiffs. See 187 F.3d at 657.


. Respectfully submitted,

DAVID W. OGDEN
Acting Assistant Attorney General

WILMA LEWIS
United States Attorney

DENNIS G. LINDER
Branch Director

THOMAS MILLET
Attorneys, Civil Division
Department of Justice
901 E St., NW
Washington, D.C. 20530
(202) 514-3313
Attorneys for Defendants