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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ASSOCIATION OF AMERICAN )
PHYSICIANS AND SURGEONS, INC., )
AMERICAN COUNCIL FOR HEALTH )
CARE REFORM AND NATIONAL )
LEGAL & POLICY CENTER, ) CIVIL ACTION
) No. 93-399
Plaintiffs, )
)
v. ) (Judge Lamberth)
)
HILLARY RODHAM CLINTON, )
DONNA E. SHALALA, Secretary of )
Health and Human Services, )
LLOYD E. BENTSEN, Secretary of )
the Treasury, LES ASPIN, )
Secretary of Defense, JESSE )
BROWN, Secretary of Veterans )
Affairs, RONALD H. BROWN, )
Secretary of Commerce, ROBERT )
B. REICH, Secretary of Labor, )
LEON E. PANETTA, Director of )
the Office of Management and )
Budget, ALICE RIVLIN, Deputy )
Director of the Office of )
Management and Budget, CAROL )
RASCO, IRA MAGAZINER and )
JUDITH FEDER, White House )
Advisors, THE PRESIDENT'S )
TASK FORCE ON NATIONAL )
HEALTH CARE REFORM, the )
INTERDEPARTMENTAL WORKING )
GROUP OF THE PRESIDENT'S TASK )
FORCE ON NATIONAL HEALTH CARE )
REFORM, and its CLUSTER GROUPS, )
WORKING GROUPS and SUBGROUPS, )
et al., )
)
Defendants. )
___________________________________)
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
Defendants contend that the placement of certain documents of
the Working Groups (categorized by them improvidently as
Presidential Records per 44 U.S.C. 2201) which have been made
available in Archives II for review by researchers moots this case.
By raising the mootness defense, the defendants have assumed a
heavy legal burden. See County of Los Angeles v. Davis , 440 U.S.
625, 631, 99 S. Ct. 1379, 1383 (1979), quoting United States v.
W.T. Grant Co. , 345 U.S. 629, 633, 73 S. Ct. 894, 897 (1953)
("[T]he burden of demonstrating mootness is a heavy one"), accord,
La Marca v. Turner , 995 F.2d 1526, 1542 (11th Cir. 1993). A case
is moot only when "(1) it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur ...
and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation." Id. (citations
omitted); see also Penthouse Int'l, Ltd. v. Meese , 939 F.2d 1011,
1018 (D.C. Cir. 1991), cert. denied , 112 S. Ct. 1513 (1992). The
defendants have failed to demonstrate how either of these elements
have been satisfied. See Better Government Ass'n v. Department of
State , 780 F.2d 86 (D.C. Cir. 1986).
THE WORKING GROUP RECORDS ARE
FACA DOCUMENTS, NOT PRESIDENTIAL RECORDS
The essence of one of the contentions and requests for relief
of Plaintiffs is that all of the records, proceedings, notes,
2
memoranda, etc. of the Working Groups should be made public
pursuant to the Federal Advisory Committee Act, Sections 10(b), 12
& 13. 1 This relief flows naturally and properly from an
adjudication by the Court that the Groups were one or more FACAs
meeting illegally. See Northwest Forest Resource Council v. Espy ,
846 F.Supp. 1009 (D.C.Cir. 1994). After "stonewalling" Plaintiffs
2
and the public for over 16 months, The White House announced on
August 17, 1994 that it was making all working group documents
"public". That is not what happened. The White House transmitted
approximately 260 boxes of documents to the Archives II, in
Maryland. These documents were made available to researchers and
are categorized there as "Clinton White House Presidential
3
Records." Indeed, in order to attempt to secure a position that
1
See also 41 CFR §101-6.1035. The 22d Annual Report of the
President on Advisory Committees (Page 1) states:
"Subject to the requirements of the Freedom of
Information Act, all papers and records
generated by Federal Advisory Committees,
including detailed minutes of each meeting,
must be made available for public inspection."
2
See Attachment B to Exhibits to Declaration of Dr. Orient .
3
The White House and Defendants have always taken the position
that these documents are not agency records or public records
subject to FOIA. See Memorandum of Ira Magaziner and Memo of
Miriam McDmiller in Attachments C to Exhibits to Declaration of Dr.
Orient. Plaintiffs have always contended otherwise.
3
these are not public records, the Archives was instructed to place
a label on each photocopy machine copy glass so that each copy
would bear a legend with reference to the Presidential Records Act.
See Declaration of Dr. Jane Orient and Attachment D to Exhibits to
Declaration of Orient . The documents are available for a limited
4
time with access restricted to those who apply as researchers, and
submit to a search of personal belongings; and a process of
application.
Congress has not engrafted an exception to the Federal
Advisory Committee Act, 5 U.S.C., App., Sections 1-14, with respect
to the Presidential Records Act, 44 U.S.C. Sections 2201 et. seq. ,
("PRA") even though the FACA specifically addresses advisory
committees "established and utilized by the President." The reason
is obvious. If the Presidential Records Act (PRA) were to apply to
Presidential advisory committees, such as Working Groups, the
entire Congressional purpose behind the enactment of FACA would be
undermined. FACA requires Presidential advisory committees to
maintain open meetings with public participation, and, importantly,
requires public access to records and documents of Presidential
4
The "application" process is relatively simple. It is
described by Dr. Orient in her Declaration. One must disclose
personal information to the Government, state a reason for the
research, and procure a research "card." The undersigned now has a
3 year "card." See National Archives and Records Administration NA
Form 14025 (10-86).
4
advisory committees. In fact, individuals are accorded the right
to seek redress in the United States Courts, pursuant to Section 10
of FACA, the Government in the Sunshine Act, 5 U.S.C. Section 552b,
and the Freedom of Information Act, 5 U.S.C. Section 552, ("FOIA")
if a Presidential advisory committee fails to provide open meetings
or fails to disclose its records or documents. Public Citizen v.
United States Department of Justice , 491 U.S. 440 (1989), 109 S.Ct.
2558 (1989); Center for Auto Safety v. Cox , 580 F.2d 689 (D.C. Cir.
1978); Food & Chemical News, Inc. v. Davis , 378 F.Supp. 1048
(D.D.C., 1974).
On the contrary, the Presidential Records Act, 44 U.S.C.
Section 2201 et. seq. , provides neither protection to the public
for the preservation of Presidential Records, nor redress from the
courts in the event records are being destroyed. Under the PRA,
the President may dispose of records upon obtaining the "views" of
the Archivist of the United States that the records "no longer have
administrative, historical, informational, or evidentiary value."
PRA, Section 2203(c). If the Archivist notifies the President he
does not intend to take action, the President need only notify the
appropriate Congressional Committees sixty (60) days in advance of
the date of disposal. Neither the Archivist nor Congress can
prevent the destruction. The Courts can not intervene. See
Armstrong v. Executive Office of the President , 1 F.3d 1274 (D.C.
Cir. 1993). Further, at any time prior to the expiration of his
5
term, the President may restrict access to his records for up to
twelve (12) years. PRA, Section 2204. The PRA provides for no
judicial review of the actions taken by a President in the
destruction or restriction of his records. See Armstrong v.
Executive Office of the President , Supra . This was made clear by
the United States Court of Appeals for the District of Columbia
Circuit in Armstrong v. Bush , 924 F.2d 282 (D.C. Cir., 1991):
We conclude that permitting judicial
review of the President's compliance with the
PRA would upset the intricate statutory scheme
Congress carefully drafted to keep in
equipoise important competing political and
constitutional concerns. We therefore hold
that the PRA is one of the rare statutes that
does impliedly preclude judicial review.
Armstrong v. Bush , 924 F.2d at 290.
The Court went on to discuss the power of the President over
Presidential records:
Congress balanced these competing goals
[doctrine of separation of powers] by
requiring the President to maintain records
documenting the policies, activities, and
decisions of his administration, but leaving
the implementation of such a requirement in
the President's hands. See 44 U.S.C. Section
2203(a). For example, although the FRA
[Federal Records Act] authorizes the Archivist
to promulgate guidelines and regulations to
assist the agencies in the development of a
records management system, the PRA lacks an
analogous system. The Archivist also lacks
the authority under the PRA to inspect the
President's records or survey the President's
records management practices. Finally, the
PRA does not require the Archivist to provide
Congress with the annual reports on the
6
President's recordkeeping policies and
practices that he must submit for agencies.
Moreover, the PRA accords the President
virtually complete control over his records
during his term of office. Although the
President must notify the Archivist before
disponing of records and the Archivist may
inform Congress of the President's desire to
dispose of the records, neither the Archivist
nor the Congress has authority to veto the
President's disposal decision. See H.R. Rep.
No. 95-1487 at 13, 1978 U.S. CODE CONG. &
ADMIN NEWS at 5744. Instead the provision
authorizing the Archivist to notify Congress
"is solely for notification though the
Congress would have its traditional means of
voicing objection to particulars in the
proposal directly to the President, or
ultimately by passing legislation to block the
destruction of certain records." Id. In
light of such cautious authority for the
Archivist and Congress to question the
President's disposal decision and the lack of
any authority to interfere with his records
management practices, it is difficult to
conclude that Congress intended to allow
courts, at the behest of private citizens, to
rule on the adequacy of the President's
records management practices or override his
records creation, management and disposal
decision.
Armstrong v. Bush , 924 F.2d at 290.
Unequivocally, Congress exercised a completely contrary intent
when it enacted FACA, to govern Presidential Advisory Committees.
It not only exercised control over the establishment, purpose, and
duration of advisory committees "established and utilized by the
President," but set forth the requirement that meetings be open,
established the type of recordkeeping such committees must perform,
7
and mandated that such records must be open for public inspection.
Where meetings were closed, or records were denied, any public
citizen could resort to the United States Courts for redress.
Congress chose to exercise control over Presidential Advisory
Committees. It did not amend FACA in the light of PRA, nor create
exceptions in PRA because of FACA. Accordingly, records submitted
to or created for or by a Presidential Advisory Committee are FACA
records, not PRA records. To hold otherwise would allow the
President to totally evade the requirements of FACA, rendering it
5
meaningless and useless.
The access to documents and records of Federal Advisory
Committees is one of the signal purposes behind the enactment of
FACA. To that end, advisory committees -- even Presidential
advisory committees -- are required to make available for public
inspection and copying at a single location in the offices of the
advisory committee or the agency to which the advisory committee
reports all the records, reports, transcripts, minutes, appendices,
working papers, drafts, studies, agenda and other documents. FACA,
Section 10(b). Food Chemical News v. Department of Health and
Human Services , 980 F.2d 1468 (D.C. Cir. 1992).
5
As it is, the President's staff went to incredible lengths to
avoid even airborne contact with FACA. See "Guidelines for Meeting
with the President" attached hereto as Attachment A.
8
For p urposes of continuity, each Federal Advisory Committee is
required to include in its charter, among other things, the agency
responsible for providing the necessary support for the committee,
FACA, Section 9(c)(E). The head of the agency named must designate
an Advisory Committee management officer who then assumes
responsibility for assembling and maintaining the reports, records
and other papers of any such committee during its existence (FACA,
Section 8(b)(2)) and carrying out the provisions of Section 552 of
Title 5, United States Code, with respect to such reports, records
and other papers (FACA, Section 8(b)(3)) afterwards.
The chairperson, here the Defendant, Hillary Rodham Clinton,
must consult with the Administrator of the General Services
Administration regarding the role of the Designated Federal officer
and Committee Management officer. 41 C.F.R. Section 101-6.1011.
The Committee Management officer is then given the authority to
carry out all responsibilities delegated by the agency head, and,
in particular, to ensure that the provisions of Sections 10b, 12(a)
and 13 of the FACA are implemented by the agency to provide for
appropriate recordkeeping.
Unequivocally, the President should name an agency to maintain
6
the records of the advisory committee. In the absence thereof,
6
President Clinton has been keenly interested in reducing the
number of FACA Committees and the expenses attendant thereto and
carefully reporting FACA costs. See Executive Order 12838 and OMB
Bulletin 93-10, dated April 9, 1993. Twenty-Second Annual Report
9
the General Services Administration may serve in such a capacity.
FACA, Section 12. Finally, the Administrator of the General
Services Administration must provide eight (8) copies of each
report made by any advisory committee and, where appropriate,
background papers prepared by consultants to the Library of
Congress. The Library of Congress must establish a depository for
such reports and papers where they shall be available for public
inspection and use. FACA, Section 13.
FACA documents therefore are the antithesis of Presidential
Records. Simply attaching a label to a photocopy machine does not
conclusively determine the matter. Continental Airlines v. CAB ,
522 F.2d 107, 124 (D.C. Cir. 1974) ("The label an agency attaches
to its action is not determinative"). Should this Court determine
that the Working Groups were subject to FACA, the documents would
then be treated in an entirely different way. First, they would be
"public" documents in every sense of the word. The Library of
Congress would have them. The Committee Secretariat of General
Services Administration would supervise them. All of them would be
subject to FOIA. One would not have to be designated a
"researcher" in order to gain access to the documents. Second,
this Court would have continuing jurisdiction to enforce its
of President on FACA. See Attachment A to Exhibits to Declaration
of Dr. Jane Orient.
10
Declaratory Judgment and Injunction requiring the President to
follow the law and make all such records available. Later, the
public would have recourse under FACA, FRA (Federal Records Act)
and FOIA. Plaintiffs would have recourse to insure that the sorry
recurrences of the past in this case and others are not repeated in
the future and that all documents in the hands of all working group
7
participants were and are properly accumulated. Were the Court to
grant Defendants Motion, there would be no way for anyone to ever
require the President to make all of the Records public, or insure
that all such documents were accumulated, as represented, or not
8
destroyed, in whole or in part.
7
The accumulation of the Records is still very much a "work in
progress." Apparently, no documents were sought by defendants
between November 3, 1993 and August 31, 1994. Between August 31,
1994 and September 9, 1994 42 Boxes from participants were
retrieved. Over one-third of participants are reported not to have
any documents. Computer records are still being "reviewed" by the
White House. See Declarations of Terry Good , Kathryn Serkes .
8
Indeed, Defendants previously argued to this Court as follows:
"Just as the district court in Armstrong could
not therefore enjoin the President from
destroying PRA records in the face of
allegations that such materials may be
discarded in violation of the Act, this Court
has no authority to enter a "prophylactic"
order which similarly requires the defendants
to comply with the PRA."
Memorandum Regarding the Presidential Records Act and the
Federal Records Act , filed April 15, 1993, at page 5. (Docket #
30).
11
Unlike the Federal Advisory Committee Act, the Freedom of
Information Act, and the Federal Records Act, the Presidential
Records Act accords the President virtually complete control over
his records during his term in office. See Armstrong v. Bush , 924
F.2d 282 at 290 (D.C. Cir. 1994). In fact, neither the Archivist
of the United States nor the Congress has the authority to veto a
decision of the President to dispose of Presidential Records.
Armstrong I , Supra , 924 F.2d at 290. Thus, if this Court dismisses
this action and loses jurisdiction, the President is free to
withdraw the documents from the Archives, dispose of all of them or
part of them or fail to disclose those documents not yet
accumulated or "reviewed." Plaintiffs will not have the complete
relief a Declaratory Judgment would afford. Clearly, the public
9
is interested. This is not a case of a Tempest in a Teapot. It
is serious public business.
Therefore, the state, form, and placement and categorization
of the documents and records of the Working Groups as FACA
documents and not as Presidential Records presents a still very
much live controversy for which this court is uniquely suited to
act in a traditional role. See Armstrong v. Executive Office of
the President , 1 F.3d 1274 (D.C.Cir. 1993). See also Memorandum
9
Thousands of Articles concerning the documents placed at
Archives II have been appearing since September 7, 1994 in most
American publications.
12
opinion in the Nation Company, Inc. v. The Archivist of the United
States , U.S. Dist. Ct. D.C. Case # 88-1939 (RCL). Judicial review
and intervention with regard to FACA records subject to FOIA very
much presents the traditional "case or controversy" role of the
judiciary. See 5 U.S.C. §552(a)(4)(B). See Truitt v. Department
of State , 897 F.2d 540, 547 (D.C. Cir. 1990). Thus, a Declaration
that this alleged "horde" was one FACA (or a number of FACAs) has
far reaching legal implications. In short, very little has
changed. The documents have moved from one custodian to another.
Researchers may review them, but they are still not "public"
documents under FACA, FRA (Federal Records Act, 44 U.S.C. §2101 et.
seq.) and FOIA. This is the rare case where legal form drives real
legal substance. Kissinger v. Reporters Committee for Freedom of
the Press , 445 U.S. 136, 100 S.Ct. 960 (1980).
WHERE ARE THE MISSING DOCUMENTS?
Defendants contend that all Working Group records, paper or
electronic, are at the Archives. However, the Archives reports
that numerous electronic documents are still being "reviewed" in
10
the White House. Other documents are still being accumulated
11
after 16 months of alleged attempts to procure them. Once this
10
See Declaration of Kathryn Serkes .
11
See Declaration of Terry W. Good .
13
court loses jurisdiction, the Plaintiffs will have no enforcement
mechanism to insure that all of these records, which should be
public, will be accumulated or divulged. Moreover, Plaintiffs have
independently obtained Working Group documents, including one
12
gigantic Working Group Draft Report, dated September 7, 1993 -
and filed simultaneously herewith - which have not been thus far
disgorged to the public at the Archives. Indeed, the Defendants
have contended all along that the Working Group ceased operating in
May, 1993. Apparently not. Plaintiffs have not thus far found any
documents in the Archives Records dated after approximately late
May or June 1993. If the Working Group was producing group drafts
as late as September, 1993, there is a sizeable "gap" in the
documents thus far produced. If this case were just about
documents (which it is not), it is still about documents. An
adjudication of the appropriate law to be applied and the
guidelines will assist in the search for the complete truth.
12
This Working Group Draft Report is interesting on many
accounts. First, it has not been found at Archives II. Second, it
seems to contradict the Declaration of Tarmey who claims the
Working Group disbanded on May 31, 1993. Third, it is close to a
Final Report at about the time the President's Plan was
"unwrapped." See BNA Report of President's Plan filed herewith.
Fourth, it is the basis of the President's Plan and legislation
still being pursued. Finally, it is directly contrary to the
representation of Defendants at Page 12: "In this case, however,
no such report exists."
14
Depositions of the appropriate document managers and of Mr.
Magaziner will help also. The Court and the Plaintiffs need to
know precisely what documents were produced when and what documents
still exist unproduced and where. PRA affords no such relief.
FACA, FRA and FOIA do.
This is at least the third time this administration has
violated this important law. Alabama - Tombigbee Rivers Coalition
v. Department of Labor , 26 F. 3d 1103 (11th Cir. 1994), Northwest
Forest Resource Council v. Espy , 846 F.Supp. 1009 (D.D.C. 1994).
In Espy , Supra , the government contended that the case was mooted
because there was nothing left to decide. The Court held, however,
that it was adjudicating the group a FACA for whatever legal
significance the law had to the facts. It afforded substantial
relief to the Plaintiffs. 846 F.Supp at 1015. In Alabama-
Tombigbee , Supra , the government argued that the case was moot
because the group had already met and given its advice and rendered
its report. It was too late for judicial action, the government
said. Besides, the government contended that it was "sorry but
could not turn back the clock." The District Court and the
Eleventh Circuit rejected the argument, concluding that being sorry
was not a sufficient disincentive for the government to adhere to
the law. 13
13
"A simple "excuse us" cannot be sufficient. It would make
FACA meaningless, something Congress certainly did not intend....
The court sees no reason to retreat from its conclusion that FACA
15
The case at Bar may be arguably the most publicly imp ortant
case in which the government has successfully utilized a litigation
and administrative strategy to desperately avoid an adjudication
that FACA applies to its expensive secret proceedings. Here,
however, obviously, part of the strategy was to keep the documents
in the hands of the participants for over 16 months, (so that the
14
defendants could argue that they did not "have" them) stonewall
the Plaintiffs and the court, move for protective orders "sealing"
15
documents, designate them "Presidential Records," disgorge some
of them when they felt they were no longer politically harmful and
was designed by Congress to prevent the use of any advisory
committee as part of the process of making important federal agency
decisions unless that committee is properly constituted and
produces its report in compliance with the procedural requirements
of FACA, particularly where, as in this case, the procedural
shortcomings are significant and the report potentially influential
to the outcome." 26 F.3d at 1106.
14
It is troubling that allegedly one-fifth of these boxes
suddenly appeared within a span of 6 days. See Declaration of
Terry W. Good . Where did they come from? In view of the
continuing discovery requests and the Order of November 9, 1993,
why were they not "requested" before? Moreover, why is it that
one-third of the participants including key "Cluster" leaders
allegedly produced no documents?
15
Defendants are a bit schizophrenic here. See Page 10 of
Defendants' Memorandum in Support of Motion to Dismiss .
Presidential Records are those created in the course of advising
the President. 44 U.S.C. §2201 (2). Defendants have always
maintained that the Working Groups did not advise the President.
See Second Declaration of Magaziner at page 2.
16
16
then declare the case "moot." This arrogant abuse of power is
precisely what FACA, FRA and FOIA were designed to curtail. Only
an adjudication can provide Plaintiffs the complete relief to which
they are entitled under the law.
Moreover, Defendants seem to contradict themselves with regard
to the facts. In order to bolster their characterization of the
documents as Presidential Records, Defendants have taken the
following position with the Court:
Since Presidential advisory committees, by
their very nature, normally serve within the
Executive Office of the President and do so
solely to advise and assist him in the
performance of his official duties, the
documents created or received by the committee
are typically Presidential records by
definition. 44 U.S.C. § 2201(2).
Defendants' Opposition to Plaintiffs' Motion for Order
Preserving Records at 11 (Docket # 39).
However, in order to make the "horde" argument, Mr. Magaziner
represented to the court in his Second Declaration:
On January 25, the President also announced
the creation of an interdepartmental working
group that would gather information concerning
16
The Government unsuccessfully employed the same strategy in
Alabama-Tombigbee . At page 16 of its Memorandum of Law in the
District Court, the government argued:
"In short, plaintiffs brought this action to
try to have the proverbial genie reinserted
into its bottle. That sort of relief is not
available in federal court. It is too late
for plaintiffs to get meaningful relief in
this context under the FACA."
17
the impact of existing health care policies
and delivery services, and possible
alternatives to those policies. 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. The working group completed its
work and disbanded during May 1993.
Second Declaration of Magaziner at 2 (Docket # 42).
It is hard to understand the factual position of Mr.
Magaziner, given the schedule of meetings with the President and
the working groups. See Attachment A to this Memorandum. It is
difficult to reconcile the arguments of defendants given the
representations to this Court that the Interdepartmental Working
Group (previously named InterAgency Group) operated solely as
staff, not to the President, but to the Task Force.
THE RECLASSIFICATION OF DOCUMENTS SHOULD BE
THE BEGINNING, NOT THE END OF RELIEF IN THIS CASE
In their Motion to Expedite Ruling on Ira Magaziner,
Defendants were aggressive in their desire to adjudicate quickly
the issues with respect to him. Now we know why. Included in the
Presidential Records at the Archives which Plaintiffs have had an
17
opportunity to see are various memos to Mr. Magaziner dated prior
17
Plaintiffs have employed "card carrying" researchers to
review the records. While there are many gaps in continuity and
numerous duplicates, it is a slow process which will take
approximately 45 days.
18
to March 3, 1993 (the date of his First Declaration). Among them
are memoranda concerning the appointment of various private persons
to the Working Groups. See Attachment D to Exhibits to Orient
Declaration . Indeed, reimbursement arrangements for these private
persons appeared to be a priority with Mr. Magaziner's staff. None
of these people apparently ever went through the charade of
becoming an "SGE" (Special Government Employee). Clearly, the
records thus far reviewed clearly document the duplicity utilized
in this case to avoid the full application of the law. Defendants
have maintained that there was no structure, form or real
organization to the "horde." Having allegedly reviewed the
Documents, such a representation is an incredible perversion of the
plain xeroxed facts. See Archives II Documents filed
simultaneously herewith. The penchant of the managers for secrecy
from the public concerning this unclassified, non-military project
18
is pathetically apparent from the records produced thus far.
18
At the beginning of the process, the First Lady was requested
to carefully choose even interns for staff "for security issues.":
"Discretion - Due to the sensitive nature of
the issues and options discussed in these
groups, security issues and concerns about
leaks are paramount. Interns should be first
chosen from those who volunteered on the
Clinton/Gore campaign or on the transition, or
who are otherwise known and trusted."
Attachment D to Exhibits to Declaration of Dr.
Jane Orient .
19
While huge gaps of time are missing from the records of an activity
occurring at a rapid pace around the clock, the truth oozes out
from the boxes -- this court and the plaintiffs have been the
subject of a misrepresentation. This was no "horde." Agendas,
schedules, structure and tight organization jump from the
documents. See Attachment D to the Exhibits to Declaration of
Orient . The factual examination of the working group ordered by
the Circuit Court of Appeals is still very ripe and itself is
plenty of case or controversy. AAPS v. Clinton , 997 F.2d 898 at
915 (D.C. Cir. 1993). Plaintiffs are certain that a review of the
record will compel this Court to conclude that Defendants deserve
to be sanctioned for the needless abuse of the facts and the
19
judicial process. That too presents a lively controversy. "A
case is not moot as long as any single claim for relief remains
viable ..." Ramer v. Saxbe , 522 F.2d 695, 704 (D.C. Cir. 1975).
THE DEFENDANTS SHOULD BE ENJOINED FROM
USING THE ILLEGAL PRODUCT OF AN UNLAWFUL PROCESS
Defendants contend that the Working Group is dead and will not
be revived. Plaintiffs are pleased. However, there can be no
great confidence level in representations made by defendants who
falsely represented that the Working Group wholly consisted of
19
Still pending are Rule 11 sanctions against the Defendants.
20
federal employees. There is no Declaration by the President or
First Lady to support the representation. There is no reference to
an Executive Order or even a speech by the Administration. It is
simply an advocacy position designed to convince the Court that a
simple adjudication of the application of FACA would be a
meaningless (and therefore jurisdictionally deficient) gesture.
Contrary to the Defendants position, the current state of the
President's Plan (as drafted by the Working Group) lends real
support to the Plaintiffs' realistic, substantive fear that the
process at the Executive Level utilizing the Working Group's work
(which in turn was engineered by powerful private foundations and
20
business close to the Administration) is still very much active.
To be sure, the President has every legal right to conduct his
deliberations as he wishes within the law. His office, however,
has no right to violate a law (especially one he has embraced) in
order to serve private interests. Plaintiffs believe that the
evidence will demonstrate at a trial that they are entitled to an
adjudication and injunction restraining the Defendants from
utilizing the materials and reports accumulated through a wholly
20
Filed simultaneously herewith is a report of BNA dated
September 13, 1993 reporting word for word the Working Group Draft
dated September 7, 1993. Also filed herewith is a Memorandum from
Representative Pete Stark to "Ways and Means Democrats"
transmitting a summary of the Working Group Draft. Clearly the
Report of September 7, 1993 is the Blue-Print upon which law-making
is proceeding.
21
illegal process in formulating its Health Care Policy and utilizing
the imprimatur of the member experts, to push it through Congress.
Otherwise, of what use is the law to a democracy if its delay and
manipulation can cause its own demise? This was precisely the
position of the Court in Alabama-Tombigbee , Supra , when it said:
"...to allow the government to use the product
of a tainted procedure would circumvent the
very policy that serves the foundation of the
act." Id. at 1107.
Furthermore, if the defendants are so sure that the game has
moved to the Congressional court exclusively, they surely can not
object to what they must consider a meaningless, empty and harmless
declaration and injunction. Defendants would probably respond
"It's the Principle, Stupid!" Plaintiffs would agree.
THE COURT HAS AMPLE GROUNDS FOR A DECLARATORY JUDGMENT
Case law is abundant establishing the viability of a
declaratory judgment as a remedy, even if the issue of injunctive
relief has been mooted. Aetna Life Ins. Co. v. Hawarth , 300 U.S.
227, 57 S.Ct. 461 (1937); Super Tire Engineers Co. v. McCorkle , 416
U.S. 115, 94 S.Ct. 1694 (1974). The Defendants introduce Super
Tire to create the impression that in the absence of injunctive
22
relief, the justiciability requirements of a declaratory judgment
are heightened. This is clearly unsubstantiated.
Likewise, Defendants contend in their motion to dismiss that
"this case does not fall into the small category of cases in which
declaratory relief remains viable even though injunctive relief is
moot" (P.15). This proposition is wrong both legally and
factually. A declaratory judgment in no way relies upon an
injunction to bear its fruit. Zwickler v. Koota , 389 U.S. 241, 88
S.Ct. 391 (1967), Super Tire Engineering Co. v. McCorkle , 416 U.S.
115, 94 S.Ct. 1694 (1974). In fact, when injunctive relief has
become moot, "a separate inquiry must be made regarding the
declaratory relief which has been sought. Super Tire 416 U.S. at
121.
Rather, as in any other case, declaratory relief is dependent
upon a substantial controversy between parties having adverse legal
interests. Id. In fact, there may be adjudication of the rights of
parties through a declaratory judgment without award of process or
payments and where no allegations of irreparable injury is made.
Aetna Life , 300 U.S. at 241. Also, a court may redress the
injuries caused by conduct which has ceased through a declaratory
judgment. Winsett v. McGinness , 617 F.2d 996 (3rd. Cir. 1980);
Marks v. City of Chesapeake, Va., 723 F. Supp 1155 (E.D. VA. 1988);
Preriser v. Nerkirk , 422 U.S. 3a5, 95 S. Ct. 2230 (1975). In
23
Winsett , future impact upon a prisoner's chances for early parole
was deemed a sufficient interest for a court to issue a declaratory
judgment, even though the prisoner had already been transferred out
of the state. Id. at 1007. Surely, a body of physicians and
surgeons have sufficient interests in health care policy to merit
similar declaratory relief.
Defendants also contend that since a declaratory judgment can
only survive if it is utilized to protect a plaintiffs' future
rights which are being challenged by a fixed governmental policy or
objective, this case has become moot. Defendants ignore the two
most recent FACA decisions, especially Northwest Forest Resource
Council v. Espy , 846 F.Supp. 1009 (D.D.C. 1994) where a federal
court issued a declaratory judgment, in the absence of an
injunction.
The situation in the Espy case, is exactly like the situation
in the present case. The difference is that in this case clear
harm will result without an injunction. However, in both instances
an advisory committee has been formed which the government contends
is only a fact-gathering unit, not reporting directly to the
President. Plaintiffs in both cases are organizations that will be
directly affected by policies formulated by these advisory
committees. Also, the government contended that no formal final
report has been written in either case nor has the government been
able to enact any legislation in either case. The District Court
24
for the District of Columbia felt obligated to issue the
declaratory relief to the Plaintiffs in the Espy case, irrespective
of other types of relief.
THIS COURT HAS AMPLE POWER UNDER EQUITY
AND FACA TO RENDER THE REQUESTED RELIEF
The power of this court to grant relief even after a statutory
right has expired is well established, and follows from the
fundamental rule that "it is a well-established prerogative of the
Court to treat as done that which should have been done."
Jacksonville Port Authority v. Adams , 556 F.2d 52, 56 (D.C. Cir.
1977), quoting Commonwealth of Pennsylvania v. Weinberger , 367
F.Supp. 1378, 1387 (D.D.C. 1973). Thus, even where a statute
prohibits an agency action after a certain date, a reviewing court
may order the agency to take proper remedial action after the
statutory deadline when the agency has acted unlawfully before the
date. Houston Lighting & Power Co. v. United States , 607 F.2d
1131, 1144-45 (D.C. Cir. 1979); International Harvester Co. v.
Ruckelshaus , 478 F.2d 615, 650 (D.C. Cir. 1973).
This Court has broad inherent equitabl e power to fashion
appropriate declaratory and injunctive relief to remedy the
violation of the law. See Sierra Pacific v. Lyng , 866 F.2d 1099,
1111 (9th Cir. 1989)(upholding district court's authority to order
broad equitable relief for logging and timber firms by modifying
25
their Forest Service contracts; explaining that district court "may
adjust its relief to the exigencies of the case in accordance with
the equitable principles governing judicial action"); United States
v. Montgomery County Bd. of Educ. , 395 U.S. 255, 227
(1969)(affirming and reiterating district court's "traditional
equitable flexibility to shape remedies in order to adjust and
reconcile public and private needs"). Accordingly, this Court has
the authority and discretion to fashion the appropriate remedy,
including enjoining defendants from using or relying upon the
unlawful Report and its underpinnings. See American Lithotripsy
Soc'y v. Sullivan , 785 F.Supp. 1034, 1036-1037 (D.D.C. 1992).
Plaintiffs have requested general declarat ory relief and
injunction. Should this court find, after complete discovery
(which can now proceed easier since the facts are now beginning at
last to develop clearly) that this was a FACA, the court can, we
believe, enforce the law in the following ways:
1. Order the Working Group documents declassified
Presidential Records and reclassified FACA records. Armstrong v.
Executive Office of the President , 1 F.3d 1274 (D.C. Cir. 1993).
2. Order that all records be made public in accordance with
FACA, FRA and FOIA.
3. Order a Charter to be filed nunc pro tunc for the Working
Groups for 1993. Section 9(c), FACA.
26
4. Order a Budget and Report of Expenditures to be filed in
accordance with FACA. Section 9(c) FACA. GSA Form T-820H.
5. Order Defendants to file the reports required by FACA.
See GSA Forms T-822H, T-821H.
6. Enjoin the use of the records and reports of the Working
Group since they are the result of an illegal process. Alabama-
Tombigbee Rivers Coalition v. Department of Labor , 26 F.3d 1103
(11th Cir. 1994).
7. Declare Plaintiffs to be the prevailing party in this case
to be awarded attorneys fees and costs. 28 U.S.C. §2412.
8. Sanction the persons and particular defendants responsible
for the misrepresentations to this and the Circuit Court of
Appeals. Rule 11, Rule 56(g), Federal Rules of Civil Procedure .
In spite of clear duplicity and a quickly melting defense, the
Defendants contend that this court has lost jurisdiction. However,
the Defendants vociferously decry an adjudication of the
application FACA. If Defendants believe that this case is only
about documents, if the Working Group is disbanded, if the concepts
being litigated here are truly not "live" in the political sense,
then why do the Defendants not agree to the Declaratory Judgment?
The answer to that question is the simple answer to the argument.
There is plenty of case left. Defendants have utilized, are
utilizing and will utilize the Working Group recommendations and
reports to fashion administrative rule making and legislation. If
27
this court declines to continue, the Defendants once again are free
to use the illegal product of taxpayer means to their own ends.
They have plenty of free constitutional field to engineer their
plans. But they must be made to do it within the law. Like the
courts in the Alabama-Tombigbee and Espy this court should not
countenance a government which violates the law, misrepresents the
facts and then claims that jurisdiction was snatched away by
carrying boxes to Maryland. The motion should be denied.
Respecfully submitted,
________________________________
Thomas R. Spencer, Jr., Esq.
SPENCER & KLEIN, P.A.
801 Brickell Avenue
Suite 1901
Miami, FL 33131
Telephone: (305) 374-7700
________________________________
Robert C. Gill, E sq.
SLAVIT & ASSOCIATES, P.C.
2300 N. Street, N.W.
Suite 775
Washington, D.C. 20037
Telephone: (202) 342-1402
Attorneys for Plaintiffs
28
DATE: September 26, 1994
PLEASE NOTE:
Filed Simultaneously herewith and in support hereof are the
following documents and exhibits:
1. Attachment A to this Memorandum.
2. Declaration of Dr. Jane Orient.
3. Exhibits to Declaration of Dr. Jane Orient
(Attachments A, B, C & D).
4. Declaration of Kathryn Serkes.
5. Working Group Draft dated September 7, 1993.
6. BNA report of Presidential Plan.
7. Letter to Ways and Means Democrats from Rep. Pete Stark.
8. Selected documents from Archives II.
29
CERTIFICATE OF SERVICE
I hereby certify that I caused a copy of the foregoing
Plaintiff's Memorandum of Points and Authorities in Opposition to
Defendants' Motion to Dismiss to be served, by hand delivery, on
this 26th day of September, 1994 on:
Frank W. Hunger
Assistant Attorney General
Eric H. Holder, Jr.
United States Attorney
John A. Rogovin
Deputy Assistant Attorney General
David J. Anderson
Elizabeth A. Pugh
Thomas W. Millet
David M Souders
Arti K. Rai
U.S. DEPARTMENT OF JUSTICE
Civil Division
Federal Programs Branch
901 E Street, N.W.
Washington, D.C. 20530
_______________________________
Thomas R. Spencer, Jr., Esq.
30
