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ASSOCIATION OF AMERICAN PHYSICIANS & SURGS.

November 9, 1993

ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., et al., Plaintiffs,
v.
HILLARY RODHAM CLINTON, et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This matter comes before the court on plaintiffs' motion to compel answers to interrogatories and production of documents. The Court has carefully read each of defendants' responses, along with all memoranda in support of and in opposition to plaintiffs' motion. On October 20, 1993, counsel also presented oral arguments to the court.

 The exception to the Federal Advisory Committee Act applying to each working group body must be on the basis that the group is composed wholly of full-time government employees. (Court of Appeals' slip op., p.26). When the body (be it a sub-group or whatever) is asked to render advice or recommendations as a group, it is a Federal Advisory Committee Act advisory committee unless it is composed wholly of full-time government employees. (Id., p. 29). This court's task is to inquire into:

 
1. The formality and structure of the working group and its sub-groups to determine if there are advisory committees within the working group, even if the working group itself is not an advisory committee.
 
2. The truth of the government's claim that all members of the working groups are full-time officers or employees of the government.
 
3. The status of the special government employees, where they came from, how many hours they worked, and whether they were full-time.
 
4. The status of the consultants-did each only come to a one-time meeting, or is his or her role functionally indistinguishable from other members of the group or sub-group. Any consultant who regularly attended and fully participated in meetings should be regarded as a member of that group or sub-group, and the consultant's status as a private citizen would then disqualify that group or sub-group from exempt status under the Federal Advisory Committee Act.

 The Court of Appeals specifically cautioned that the Federal Advisory Committee Act cannot be avoided by simply appointing, for example, "10 private citizens as special government employees for two days, and then have the committee receive the section 3(2) exemption as a body composed of full-time government employees." (Id., pp. 31-32).

 Importantly, Circuit Judge Buckley, in his concurring opinion, noted the importance of the government's argument regarding compliance with ethics laws:

 
"Mr. Magaziner . . . took pains to stress the fact that every member of and consultant to the group -- whether a regular or special government employee, whether working full time or part, for pay or without -- was required to file a financial disclosure statement and to comply with other requirements of these laws."

 (Court of Appeals slip op., Buckley, J. Concurring, at 11-12.) Discovery into the truth of Mr. Magaziner's affidavit on this point, then, also appears to be warranted.

 Rule 26 must be liberally construed to allow discovery into any factual matter that is germane to any of the remaining legal issues in this case, and that may lead to the discovery of admissible evidence or may relate to circumstantial evidence.

 The court rejects defendants' objection that because the current complaint has no specific allegation that "the interdepartmental working group, its cluster groups or subgroup or any other groups were subject to the FACA" plaintiffs are not entitled to seek discovery on these issues. The complaint can be amended to conform to the evidence discovered, and there is no basis at this late stage - on remand, after full briefing - to now raise an archaic technical pleading objection. After full discovery, the court will require an ...


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