UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ASSN AMER PHYSN

v.

CLINTON, HILLARY R.


98-5048b

D.C. Cir. 1999


*	*	*


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.


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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,


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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


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Not having previously raised the defense, 


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before then


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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