Association of American Physicians and Surgeons, Inc. v. Clinton, Nos. 93-5086

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtJane E. Kirtley; SILBERMAN; Nevertheless, the government maintains that Morrison is not directly on point. Picking up on Justice Kennedy's concurrence in Public Citizen, the government contends that the Morrison Court's imprecise balancing test, whic
Citation997 F.2d 898
Parties, 62 USLW 2014, 21 Media L. Rep. 1705 ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., et al., Appellees, v. Hillary Rodham CLINTON, et al., Appellants. ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., et al., Appellants, v. Hillary Rodham CLINTON, et al., Appellees. District of Columbia Circuit
Decision Date22 June 1993
Docket Number93-5092,Nos. 93-5086

Page 898

997 F.2d 898
302 U.S.App.D.C. 208, 62 USLW 2014,
21 Media L. Rep. 1705
ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., et
al., Appellees,
v.
Hillary Rodham CLINTON, et al., Appellants.
ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., et
al., Appellants,
v.
Hillary Rodham CLINTON, et al., Appellees.
Nos. 93-5086, 93-5092.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 30, 1993.
Decided June 22, 1993.

Mark B. Stern, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause for appellants/cross-appellees Hillary Rodham Clinton, et al. With him on the briefs were J. Ramsey Johnson, U.S. Atty., Stuart E. Schiffer, Acting Asst. Atty. Gen., Robert E. Kopp, Patricia A. Millett, and Malcolm L. Stewart, Attys., U.S. Dept. of Justice, Washington, DC. Stuart M. Gerson, Atty., U.S. Dept. of Justice, Washington, DC, entered an appearance for appellants/cross-appellees.

Kent Masterson Brown, Louisville, KY, argued the cause for appellees/cross-appellants Association of American Physicians and Surgeons, Inc., et al. With him on the briefs were Frank M. Northam and Alan P. Dye, Washington, DC.

Steven R. Ross, Gen. Counsel, and Charles Tiefer, Deputy Gen. Counsel, Office of Gen. Counsel, U.S. House of Representatives, Washington, DC, filed the brief for amicus curiae Speaker and Bipartisan Leadership Group.

Ronald A. Zumbrun, Anthony T. Caso, and Robin L. Rivett, Sacramento, CA, filed the brief for amici curiae Pacific Legal Foundation and the National Taxpayers Union.

Jane E. Kirtley, J. Laurent Scharff, James E. Grossberg, Richard M. Schmidt, Jr., Allan R. Adler, Bruce W. Sanford, Henry S. Hoberman, and Whitney M. Adams, Washington, DC, filed the brief for amici curiae Reporters Committee for Freedom of the Press, et al.

Joseph Gregory Sidak, Washington, DC, filed the brief for amicus curiae J. Gregory Sidak.

Samuel B. Wallace, IV, filed the brief for amicus curiae Samuel B. Wallace, IV.

Before: SILBERMAN, BUCKLEY, and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Opinion concurring in the judgment filed by Circuit Judge BUCKLEY.

SILBERMAN, Circuit Judge:

This expedited appeal presents the question whether the President's Task Force on National Health Care Reform ("Task Force") and its working group are advisory committees for purposes of the Federal Advisory Committee Act ("FACA"). If they are, we are asked to decide whether FACA unconstitutionally encroaches on the President's Article II executive powers. We hold that the Task Force is not an advisory group subject to FACA, but remand to the district court for further proceedings to determine the status of the working group.

I.

On January 25, 1993, President Clinton established the President's Task Force on National Health Care Reform. The President named his wife, Hillary Rodham Clinton, as the chairman of the Task Force, and appointed as its other members the Secretaries of the Treasury, Defense, Veterans Affairs, Health and Human Services, Labor, and Commerce Departments, the Director of the Office of Management and Budget, the chairman of the Council of Economic Advisers,

Page 901

[302 U.S.App.D.C. 211] and three White House advisers. President Clinton charged this body with the task of "listen[ing] to all parties" and then "prepar[ing] health care reform legislation to be submitted to Congress within 100 days of our taking office." 29 WEEKLY COMP.PRES.DOC. 96 (Feb. 1, 1993).

On the same day, the President also announced the formation of an interdepartmental working group. According to the government, the working group was responsible for gathering information and developing various options on health care reform. It was composed of three types of members: (i) approximately 300 permanent federal government employees drawn from the Executive Office of the President, the federal agencies, and Congress; (ii) about 40 "special government employees" hired by the agencies and the Executive Office of the President for a limited duration; and (iii) an unknown number of "consultants" who, it is asserted, "attend working group meetings on an intermittent basis." Ira Magaziner, the senior adviser to the President for Policy Development, headed the working group and was the only member of the Task Force who attended the group's meetings.

According to the government, the working group had no contact with the President. In addition to gathering information, the working group developed alternative health care policies for use by the Task Force. But only the Task Force, it was contemplated, would directly advise and present recommendations to the President. On March 29, 1993, the Task Force held one public hearing where interested parties could present comments on health care reform. See 58 Fed.Reg. 16,264 (1993). However, the Task Force met behind closed doors at least 20 times in April and May to "formulate" and "deliberate" on its advice to the President. As the government publicly has announced, in those meetings "the Task Force reviewed materials it received from the interdepartmental working group; formulated proposals and options for health care reform; and presented those proposals and options to the President." Statement of the White House Press Secretary (June 4, 1993). In accordance with its charter, the Task Force then terminated its operations on May 30. 1 All of the working group's meetings remained closed to the public.

Appellees are the Association of American Physicians and Surgeons, which represents physicians; the American Council for Health Care Reform, which represents health care consumers; and the National Legal & Policy Center, which seeks to promote ethics in government. They sought access to the Task Force's meetings under the Federal Advisory Committee Act. Pub.L. No. 92-463, 86 Stat. 770 (1972) (reproduced at 5 U.S.C.App. 1 (1988)). Their efforts were rebuffed by the Counsel to the President, who informed them that the Task Force was not an advisory committee subject to FACA.

Appellees thereupon brought suit against the Task Force in district court. They claimed that the Task Force was a FACA committee because it was chaired by Mrs. Clinton, a private citizen, and that the Task Force had violated FACA by failing to file an advisory committee charter. They further asserted that FACA permitted them to attend all of the meetings of the Task Force and of any of its subgroups. Appellees sought a temporary restraining order and a preliminary injunction halting the operation of the Task Force until it complied with FACA and allowed the public to attend its meetings. The government responded that the Task Force was exempt from FACA because all of its members--including Mrs. Clinton--were government officers and employees. The government alternatively challenged any application of FACA to the Task Force as an unconstitutional infringement on the President's executive power.

In a memorandum opinion issued on March 10, 1993, the district court granted in part appellees' motion for a preliminary injunction. The court determined that appellees had a substantial likelihood of success on the merits. Mrs. Clinton, the court held, was not an officer or employee of the federal government merely by virtue of her status as "First Lady." Therefore, the Task Force

Page 902

[302 U.S.App.D.C. 212] could not qualify for an exemption from FACA as an advisory group composed solely of "full-time officers or employees" of the government. See Association of Am. Physicians & Surgeons v. Hillary Rodham Clinton, 813 F.Supp. 82, 89-90 (D.D.C.1993) ("Mem. Op."); see also 5 U.S.C.App. 2 § 3(2)(iii). The court, however, agreed with the government that FACA encroached on the President's constitutional authority to receive confidential advice for the purpose of recommending legislation. But the court thought that executive prerogatives were implicated only when the Task Force was advising the President, not when it engaged in information-gathering. The district court accordingly granted a preliminary injunction requiring the Task Force to meet all the requirements of FACA except when it met to formulate advice or recommendations for the President.

As to the working group, the district court concluded that appellees had failed to state a claim under FED.R.CIV.P. 12(b)(6) that the subordinate body was covered by FACA. Relying on National Anti-Hunger Coalition v. Executive Committee, 557 F.Supp. 524 (D.D.C.), aff'd, 711 F.2d 1071 (D.C.Cir.1983), the court held that the working group was not an advisory committee because it was engaged in fact-gathering and did not provide advice directly to the President. The court denied appellees motion for expedited discovery concerning the actions and status of the working group, but nevertheless determined that there were no issues of material fact and that it could have dismissed on summary judgment grounds as well. Mem. Op. at 89 n. 11.

The government filed this appeal on March 22, 1993. Appellees subsequently filed a cross-appeal. We have jurisdiction to review a grant of a preliminary injunction under 28 U.S.C. § 1292(a), and we expedited the appeal due to the short time frame within which the Task Force and the working group operated.

II.

The government, as appellant and cross-appellee, and the plaintiffs below, as appellees and cross-appellants, together challenge much of the district court's ruling. The government takes issue primarily with the court's determination that Mrs. Clinton is not an "officer or employee" for purposes of section 3(2) of FACA. It is claimed that as the "First Lady," Mrs. Clinton is the functional equivalent of a government officer or employee, that the Task Force, therefore, is composed solely of full-time government officials--indeed officers drawn from among the President's closest official advisers--and that thus the Task Force is exempt from FACA. In the alternative, the government reiterates its...

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98 practice notes
  • Part III
    • United States
    • Federal Register November 15, 2007
    • November 15, 2007
    ...presence of an advisory committee becomes the formality and structure of the group (Ass'n of Am. Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 913-14 (DC Cir. OSHA assembled the expert panel for the purpose of gathering data, anecdotal evidence, and other information from each exp......
  • Separate Parts In This Issue Part III Labor Department, Occupational Safety and Health Administration,
    • United States
    • Federal Register November 15, 2007
    • November 15, 2007
    ...presence of an advisory committee becomes the formality and structure of the group (Ass'n of Am. Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 913-14 (DC Cir. OSHA assembled the expert panel for the purpose of gathering data, anecdotal evidence, and other information from each exp......
  • Natural Resources Defense Council v. Abraham, No. CIV.A.00-2431 EGS.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 30, 2002
    ...the termination of a task force rendered the case moot by noting that the parties had "agreed" to the existence of a "live controversy." 997 F.2d 898, 898 n. 1 (D.C.Cir.1993); but see Steel Co., 523 U.S. at 97, 118 S.Ct. 1003 (courts may not reach merits of a case by assuming Defendants sug......
  • Judicial Watch, Inc. v. U.S. Dept. of Commerce, No. CIV.A. 95-133(RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 30, 2004
    ...agency as regards acts relating to her official capacity as wife of the Secretary. See Assoc. of Am. Phys. & Surgeons v. Clinton, 997 F.2d 898, 911 (D.C.Cir.1993) (finding that First Lady Hillary Clinton was a government employee for purposes of the Federal Advisory Committee In Civil Actio......
  • Request a trial to view additional results
92 cases
  • Natural Resources Defense Council v. Abraham, No. CIV.A.00-2431 EGS.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 30, 2002
    ...the termination of a task force rendered the case moot by noting that the parties had "agreed" to the existence of a "live controversy." 997 F.2d 898, 898 n. 1 (D.C.Cir.1993); but see Steel Co., 523 U.S. at 97, 118 S.Ct. 1003 (courts may not reach merits of a case by assuming Defendants sug......
  • Judicial Watch, Inc. v. U.S. Dept. of Commerce, No. CIV.A. 95-133(RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 30, 2004
    ...agency as regards acts relating to her official capacity as wife of the Secretary. See Assoc. of Am. Phys. & Surgeons v. Clinton, 997 F.2d 898, 911 (D.C.Cir.1993) (finding that First Lady Hillary Clinton was a government employee for purposes of the Federal Advisory Committee In Civil Actio......
  • In re Cheney, No. 02-5354.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 8, 2003
    ...to advise officers and agencies in the executive branch of the Federal Government,'" Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 902-03 (D.C.Cir.1993) (AAPS) (quoting 5 U.S.C.App. 2, § 2(a)), FACA requires advisory committees to make public all reports, records, or ot......
  • U.S. ex rel. Long v. SCS Business & Technical Institute, Inc., Nos. 98-5133
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 2, 1999
    ...at 1228; see also United States v. Espy, 145 F.3d 1369, 1372 (D.C.Cir.1998); Association of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 906, 910-11 (D.C.Cir.1993). Furthermore, the constitutional question must be one that presents a "serious likelihood that the statute will be......
  • Request a trial to view additional results
1 books & journal articles
  • Information Access-Surveying the Current Legal Landscape of Federal Right-to-Know Laws
    • United States
    • Environmental Law Reporter Nbr. 39-8, August 2009
    • August 1, 2009
    ...committees outside of the base deinition of advisory committees). 80. 5 U.S.C. app. 2 §5(c). 81. Id. §10(a)(2). 82. Id. §10(b). 83. 997 F.2d 898 (D.C. Cir. 1993). 84. Id. at 901. 85. Id. 86. Id. at 915–16. 87. Id. at 911, 915–16. 88. Id. at 915. 89. Id. at 901. 90. Ass’n of Am. Physicians &......

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