Assn Amer Physn, et al v. Clinton, Hillary R., et al, No. 98-5048 (D.C. Cir. 1999)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 24, 1999.
United States Court of Appeals for the district of columbia circuit
Nos. 98-5048 & 98-5049 September Term, 1999
American Association of Physicians and Surgeons, Inc., et al, No. 93cv00399 Appellees v.
Hillary Rodham Clinton, et al.,
Appellants Before: Ginsburg and Henderson, Circuit Judges, Buckley, Senior Circuit Judge.
O R D E R
It is ORDERED by the court that the opinion filed by the court on August 24, 1999 be amended as follows:
Page 3, lines 14-15: Delete the following language:
and that the government did not rely on the defense the court found unjustified
Page 10 footnote 5: Add to the end of the footnote the following language:
The Magaziner Declaration described the working group as made up exclusively of "federal government employees" but it made no mention of the FACA federal employee exemption and did not claim the employee members were "full-time, or permanent part-time" government employees, a necessary element of the exemption.
Page 10, line 26 to page 11, line 12: Delete the following language:
It was this court's decision in AAPS I that mistakenly attributed to the government the "claim [ ] that all of the members of the working groups are full-time officers or employees of the government, and, for that reason alone, the working groups are not FACA advisory committees." 898 F.2d at 914. [FN5] That decision apparently persuaded both the plaintiffs and the district court that the government had adopted the defense. In fact, however, at no point in the litigation did the government affirmatively invoke the exemption as a defense to release of working group documents either in the district court or on appeal. The Magaziner Declaration described the working group as made up exclusively of "federal government employees" but it made no mention of the FACA federal employee exemption and did not claim the employee members were "full-time, or permanent part-time" government employees, a necessary element of the exemption. After remand for further discovery--in part to determine whether the exemption applied, see id. at 915--
Page 11, line 12: Add the following language (before "the government informed"):
Assuming that the government affirmatively invoked the exemption in the district court as a defense to release of working group documents, a fact that is not at all clear from the record,5
Page 11, lines 18-19: Delete the following language:
Not having previously raised the defense,
Page 11, line 19: Capitalize the "t" in "the"
Page 11, line 19: Add (after the word "duty") the following language:
before then
Page 14, lines 25-28: Delete the following language:
and because, in any event, the defense the court found unjustified--that all working group members were full-time federal employees--was not advanced by the government
Per Curiam For the Court: Mark Langer
Filed on September 9, 1999
Nos. 98-5048 & 98-5049 September Term, 1999
American Association of Physicians and Surgeons, Inc., et al, No. 93cv00399 Appellees v.
Hillary Rodham Clinton, et al.,
Appellants Before: Ginsburg and Henderson, Circuit Judges, Buckley, Senior Circuit Judge.
O R D E R
It is ORDERED by the court that the opinion filed by the court on August 24, 1999 be amended as follows:
Page 3, lines 14-15: Delete the following language:
and that the government did not rely on the defense the court found unjustified
Page 10 footnote 5: Add to the end of the footnote the following language:
The Magaziner Declaration described the working group as made up exclusively of "federal government employees" but it made no mention of the FACA federal employee exemption and did not claim the employee members were "full-time, or permanent part-time" government employees, a necessary element of the exemption.
Page 10, line 26 to page 11, line 12: Delete the following language:
It was this court's decision in AAPS I that mistakenly attributed to the government the "claim [ ] that all of the members of the working groups are full-time officers or employees of the government, and, for that reason alone, the working groups are not FACA advisory committees." 898 F.2d at 914. [FN5] That decision apparently persuaded both the plaintiffs and the district court that the government had adopted the defense. In fact, however, at no point in the litigation did the government affirmatively invoke the exemption as a defense to release of working group documents either in the district court or on appeal. The Magaziner Declaration described the working group as made up exclusively of "federal government employees" but it made no mention of the FACA federal employee exemption and did not claim the employee members were "full-time, or permanent part-time" government employees, a necessary element of the exemption. After remand for further discovery--in part to determine whether the exemption applied, see id. at 915--
Page 11, line 12: Add the following language (before "the government informed"):
Assuming that the government affirmatively invoked the exemption in the district court as a defense to release of working group documents, a fact that is not at all clear from the record,5
Page 11, lines 18-19: Delete the following language:
Not having previously raised the defense,
Page 11, line 19: Capitalize the "t" in "the"
Page 11, line 19: Add (after the word "duty") the following language:
before then
Page 14, lines 25-28: Delete the following language:
and because, in any event, the defense the court found unjustified--that all working group members were full-time federal employees--was not advanced by the government
Per Curiam For the Court: Mark Langer
Filed on September 9, 1999
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