Professional Documents
Culture Documents
No. 08-5188
GREGORY G. KATSAS
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
MARK B. STERN
(202)514-5089
THOMAS M. BONDY
(202)514-4825
Attorneys, Appellate Staff
Civil Division, Room 7535
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Plaintiff in the district court, and appellant in this appeal, is Citizens for
Defendant in the district court, and appellee in this appeal, is the Office of
Judicial Watch, Inc., was amicus curiae in support of plaintiff in the district
The ruling under review is the decision in Citizens for Responsibility and
(D.D.C. June 16, 2008) (Judge Colleen Kollar-Kotelly). The ruling is reported at
This case has not been before this or any other Court. Counsel for appellee
THOMAS M. BONDY
Attorney for Appellee
(202)514-4825
TABLE OF CONTENTS
GLOSSARY
ARGUMENT ......................................................................................................... 12
CONCLUSION ...................................................................................................... 35
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Cases: ~
Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988) .......................................... 31
Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728 (D.C. Cir. 2007) ..... 11, 31
* Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993) .......... 7, 9, 13, 16, 17, 20, 23-28
* Sierra Club v. Andros, 581 F.2d 895 (D.C. Cir.), rev’d on other grounds,
442 U.S. 347 (1978) ................................................................................ 7, 17
111
Statutes:
§ 4342 .................................................................................................. 18
§ 6612 .................................................................................................. 18
Regulations:
Rules:
iv
Miscellaneous:
EO Executive Order
OA Office of Administration
No. 08-5188
Plaintiff-Appellant,
V.
OFFICE OF ADMINISTRATION,
Defendant-Appellee.
STATEMENT OF JURISDICTION
invoked the district court’s jurisdiction under 5 U.S.C. § 552 and 28 U.S.C.
§ 1331. See JA 14 (Complaint, ¶3). On June 16, 2008, the district court entered
final judgment, dismissing the case in its entirety. JA 322 (Order); JA 323-61
that it was not an agency within the meaning of the FOIA. After allowing limited
jurisdictional discovery, the district court granted the Government’s motion, and
STATEMENT OF FACTS
agencies to make records publicly available upon request. See 5 U.S.C. § 552.
For purposes of the FOIA, the term "agency" is defined to "include[] any
2
controlled corporation, or other establishment in the executive branch of the
Court’s decision in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), which had
interpreted the previous definition to exclude parts of the Executive Office of the
President that served only to advise and assist the President and did not wield
1073, 1075. See H.R. Rep. No. 93-1380, at 14 (1974); see also Armstrong v.
receipt of the FOIA requests, and granted plaintiff’s demand for expedited
processing. In May 2007, when there had not yet been any production of records,
plaintiff filed this action in district court, seeking an order compelling disclosure
was not. an "agency." within the meaning of FOIA, but was nevertheless electing to
advised that it had located and was withholding additional potentially responsive
documents, and reiterated that it was not an "agency" subject to FOIA. Ibid.
it was entitled to judgment as a matter of law because it was not an agency as that
term is defined in the FOIA. Plaintiff opposed the motion, asserting among other
things that the question whether OA was a FOIA agency was jurisdictional, and
(Sept. 4, 2007), at 20 & nn. 23, 24. The district court, in February 2008, denied
OA’s motion without prejudice, allowing the parties to conduct "very limited
1,300 pages of documents, and plaintiff took the deposition of OA’s Director.
jurisdiction, on the basis that it was not a FOIA "agency" and that the district court
therefore lacked jurisdiction over plaintiff’s FOIA action. After briefing by the
parties, the district court issued a memorandum opinion and order granting the
S oucie, su_u_p_r~, the district court emphasized that "[f]ollowing Soucie’s lead,
’every one of the EOP units that [the D.C. Circuit has] found to be subject to FOIA
(quoting Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995)). After a
thorough review of the record, the court concluded that the "OA is not an agency
5
subject to the FOIA," because "OA lacks the type of substantial independent
authority that the D.C. Circuit has found indicative of agency status for other EOP
components when applying the Soucie criteria, and because the nature of OA’s
delegated authority is dissimilar to that of other EOP units that have been found to
The court observed that, under Reorganization Plan No. 1 of 1977, which
range of administrative services to EOP components, but is not invested with any
authority beyond providing such services within EOP. JA 348. Indeed, as the
district court pointed out, the applicable Executive Orders make explicit that OA’s
responsibilities of units within [EOP]: the head of each unit shall remain
responsible for those functions." Ibid. (quoting Executive Order 12122, § 4(d)).
does the fact that OA employs over 200 individuals and is organized along seven
contracting for supplies and services, do not demonstrate that it has any
6
~possess[es] any delegated regulatory authority to supervise agencies,’ or has the
within or outside the executive branch.’" JA 351 (quoting Meyer v. Bush, 981
The court contrasted the powers of the Office of Administration with those
Quality, two EOP components that this Court has found to fall within the FOIA’s
definition of agency. "Significantly," the court stated, OA °"does not oversee and
JA 351 (quoting Sweetland, 60 F.3d at 854); see also Pacific Legal Foundation v.
Council on Envtl. Quality., 636 F.2d 1259 (D.C. Cir. 1980) (concluding that CEQ
is a FOIA agency). "Nor does OA, like the Office of Management and Budget,
Andrus, 581 F.2d 895 (D.C. Cir. 1978), rev’d on other grounds, 442 U.S. 347
(1979)).
substantive responsibility for those units." JA 351. Thus, while recognizing that
the specific context bearing upon an EOP component’s FOIA status will vary with
the entity at issue, the court indicated that this case was perhaps most comparable
to Sweetland, where this Court held that the Executive Residence was not a FOIA
agency, because the "staff of the Executive Residence exercises none of the
60 F.3d at 854); JA 346. For these reasons, "the [c]ourt conclude[d] that, because
OA serves only to assist and advise the President, and does not exercise
subject to the FOIA, but explained that the Office’s earlier view did not alter the
that the National Security Council ("NSC") was exempt from FOIA
notwithstanding that NSC had at times considered itself within FOIA, explaining
that "NSC’s prior references to itself as an agency are not probative on the
question before the court - whether the NSC is indeed an agencY within the
dispositive." JA 358.
SUMMARY OF ARGUMENT
Office of the President does not take it outside the scope of the FOIA when such
an entity can "act directly and independently beyond advising and assisting the
President." Meyer, 981 F.2d at 1292 (citing Soucie, 448 F.2d at 1075). However,
"in cases involving units of the Executive Office that lacked substantial
independent authority, we have consistently rejected the claim that they were
Applying these standards, the district court correctly concluded that the
Unlike those EOP components that this Court has held are FOIA agencies, OA has
9
The 1977 Message of the President transmitting the underlying
including the creation of OA, "are based on the premise that the EOP exists to
serve the President and should be structured to meet his needs." JA 81 (Message
centralized administrative unit within the Executive Office of the President, .whose
of the President," Sweetland, 60 F.3d at 854, the hallmark of every unit of the EOP
whether, regardless of its placement with the EOP, the Administrative Office
services within EOP does not constitute the type of substantial independent
authority discussed in this Court’s decisions. Nor, as the district court explained,
10
generally within the EOP rather than directly and exclusively to the President
himself.
Plaintiff, in district court, argued that the court could not grant the government’s
discovery on that question, including the deposition of the Director of the Office
agency status was not jurisdictional, and that the court could not allow merely
"jurisdictional" discovery. Plaintiff has plainly waived that argument and, under
any standard, the discovery permitted by the district court would not constitute an
abuse of discretion.
STANDARD OF REVIEW
meaning of the FOIA presents a legal issue reviewable de novo. The court’s
discovery rulings are reviewed for abuse of discretion. See Islamic Am. Relief
11
ARGUMENT
Court’s analysis in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), which, as
the district court noted, "interpreted the original definition of’agency’ under the
the exercise of specific functions,’ id. at 1073, and concluded that the
Office of Science and Technology was an agency because its ’sole function was
[not] to advise and assist the President,’ id. at 1075." See JA 339.
notwithstanding its inclusion in the EOP, this Court in Soucie emphasized that the
OST had inherited its independent authority "from the National Science
Foundation, to which Congress had delegated ’some of its own broad power of
transferred to the OST, both the executive branch and members of Congress
12
programs accumulated by the OST, despite any confidential relation between the
Director of the OST and the President.’" JA 343 (quoting Soucie, 448 F.2d at
1075). As this Court observed in Sweetland v. Walters, 60 F.3d 852 (D.C. Cir.
1995), OST "was subject to FOIA because it had independent authority to evaluate
federal scientific programs, initiate and support research, and award scholarships."
Id. at 854 (citing Soucie, 448 F.2d at 1075); see also Meyer v. Bush, 981 F.2d at
1292 ("Although we acknowledged that OST advised and assisted the President,
we emphasized that OST also had inherited from the National Science Foundation
the EOP. "By contrast, in cases involving units of the Executive Office that
that they were subject to the FOIA." Sweetland, 60 F.3d at 854. OA wields no
such authority.
President, and has no substantial independent authority, is plain from OA’s charter
13
"established in the Executive Office of the President the Office of Administration
which shall be headed by the President." JA 79 (Reorg. Plan No. 1 of 1977, §2).
services as the President shall from time to time direct." Ibid. The Director of the
Congress explained that the changes to EOP’s structure, including the creation of
OA, "are based on the premise that the EOP exists to serve the President and
Message explained that "[t]he EOP has never before been organized as a single,
unified entity serving the President," and that OA, as a new, centralized
establishment, providing that OA’s Director "shall report to the President" (EO
12028, §2); "shall be responsible for ensuring that [OA] provides units within
14
[EOP] common administrative support and services" (ibid.); and, "[s]ubject to
such direction or approval as the President may provide or require, shall (1)
organize [OA], (2) employ personnel, (3) contract for supplies or services, and (4)
do all other things that the President, as head of [OA], might do." (id., §4). As
OA’s "Director shall not be accountable for the program and management
responsibilities of units within [EOP]; the head of each unit shall remain
The contrast with the creation of the OST, discussed in Soucie., is evident.
information to Congress. The Committee declared that "[w]ith the creation of the
new office the Director will become available to Congress and provide us with
more information than we now obtain." Soucie, 448 F.2d at 1075 (quoting H.R.
of the Government outside of the EOP. Nor does OA have any substantive
authority over any component within EOP. As noted, OA’s "Director shall not be
15
[EOP]; the head of each unit shall remain responsible for those functions." EO
12028, §4(d).
As the district court recognized, this Court has never held a part of the EOP
Sweetland, 60 F.3d at 854 ("[E]very one of the EOP units that [the D.C. Circuit
Science and Technology was held to be a FOIA agency because it had "the
F.2d at 1075. The Council on Environmental Quality was deemed a FOIA agency
Quality., 636 F.2d 1259, 1262 (D.C. Cir. 1980); see Rushforth v. Council of
Economic Advisers, 762 F.2d 1038, 1041 (D.C. Cir. 1985). Similarly, the Office
because it has the authority to "assemble, correlate, revise, reduce, or increase the
16
requests for appropriations of the several departments or establishments," and "in
functions," it "has a statutory duty [to Congress] to prepare the Budget." Sierra
Club v. Andrus, 581 F.2d 895,902 & n.25 (D.C. Cir. 1978)..
signaled that. a component of the EOP is not an agency under the FOIA. Thus, the
Council of Economic Advisers is not a FOIA agency because it does "not possess
1293, and has "no []power to issue formal legally authoritative commands to
entities or persons within or without the executive branch," id. at 1292; see
Rushforth, 762 F.2d at 1043. Likewise, the National Security Council is not a
maintaining his home and carrying out his various ceremonial duties, and "does
17
The Office of Administration, like the CEA, the NSC, and the Executive
Residence, does not direct or supervise components of the Executive Branch and
public policy matters. And, unlike the heads of OST, CEQ, and OMB, the
See 31 U.S.C. § 502 (OMB); 42 U.S.C. §§ 4342 (CEQ), 6612 (OST). Instead,
much like the Executive Residence, which supports the President by maintaining
his home and assisting him in his ceremonial duties, OA supports the President by
the Administrative Office and those components of the EOP that this Court has
previously held to be FOIA agencies. Although plaintiff baldly asserts that "OA is
an agency because its does not advise and assist the President," Appellant’s Br. at
18
27, it cannot demonstrate that OA possesses relevant authority with regard to any
other part of the Executive Branch. Plaintiff’s argument, instead, is that the OA
does not provide services directly to the President but performs its work for the
support and services to EOP components "except for such services provided
district court noted, while plaintiff"is correct that OA’s charter documents do not
President," "this distinction does not establish that OA performs functions beyond
advising and assisting the President." JA 348. "Instead, OA’s charter documents
and President Carter’s message to Congress make clear that OA’s function is to
original).
to the White House Office that it provides to other EO components is beside the
operations into a central unit within EOP so that EOP can better serve the
19
President’s needs. JA 81, 86 (Message of the President). As OA has explained to
Congress, OA’s mission is to provide the necessary administrative support "so that
policy-making staff elsewhere in the EOP can focus on national policy decisions
Budget).
request, assist the White House Office in performing its role of providing those
12028, §3(a). And, OA has, in fact, provided such direct support. See JA 348-49
(citing examples).
EOP component is not how directly it provides services to the President but the
extent to which it provides services to Congress and exercises authority over other
parts of the Executive Branch. Thus, as this Court observed in Meyer, the Office
of Science and Technology "was a FOIA agency precisely because it could act
directly and independently beyond advising and assisting the President." Mez~,
20
981 F.2d at 1292; see Soucie, 448 F.2d at 1075 ("By virtue of its independent
Plaintiff mistakenly asserts that, under the district court’s reasoning, "the
least indirectly assists the President in carrying out his agenda." Appellant’s Br.
18. This assertion underscores the extent to which plaintiff fails to come to grips
with the relevant inquiry. The Soucie test concerns the relative roles of offices
within the EOP. If such offices provide services only within the EOP and exercise
no substantial independent authority, tl-iey do not fall within the FOIA. That
contention that, that under the district court’s reasoning, the General Services
30. Plaintiff fails to note the obvious-unlike OA, GSA was established by
21
the head of GSA is appointed by the President with the advice and consent of the
Senate, 40 U.S.C. § 302. GSA also possesses its own substantive authority with
contracts for supplies and services, including agreements with federal agencies.
administrative services performed for the EOP. They concern matters such as
f~deral entities present on the White House complex for purposes of supporting
EOP. See JA 330-32; Appellant’s Br. 9. For example, OA has an agreement with
the Department of the Navy, pursuant to which the Navy pays OA for AT&T voice
systems operation and maintenance, because the Navy operates the White House
Mess executive dining rooms located on the White House complex. See JA 332.
22
If OA couid not enter into these types of contracts, it would be poorly
placed to perform its role of providing administrative support and services within
EOP. Indeed, as noted above, OA’s charter documents specifically provide that
the Director [of OA] shall * * * contract for supplies or services." EO 12028,
§4(a).
wide of the mark. This Court in Meyer articulated a three-part formulation for
"appl[ying] Soucie" and °°determining whether those who both advise the
FOIA." Armstrong, 90 F.3d at 558; see Me_M__e_y~, 981 F.2d at 1293. The Court in
that case ultimately determined that President Reagan’s Task Force on Regulatory
branch officials. The various cabinet members of the Task Force were
But there is no indication that when acting as the Task Force they were to exercise
substantial independent authority, nor in fact, did they do so." Id. at 1298.
23
As the district court noted, the question confronted by ~ in analyzing a
federal task force composed in part of agency heads is not presented here. See JA
341-42. Similarly, this Court did not apply the three-part test in Sweetland, a case
decided after Me2_~, in determining that the staff of the Executive Residence was
not subject to FOIA because "[t]he staff does not oversee and coordinate federal
As the district court also explained, ~’s three-part test for applying the
Soucie standards to the problems posed by an inter-agency task force did not
component. Thus, just as OA is not an "agency" under Soucie itself, it is also not
court concludes that OA is not an agency subject to the FOIA under either rubric,
because OA lacks the type of substantial independent authority that the D.C.
Circuit has found indicative of agency status for other EOP components when
applying the Soucie criteria, and because the nature of OA’s delegated authority is
dissimilar to that of other EOP units that have been found to be agencies subject to
the FOIA.").
plaintiff’s argument fails on any terms. In Me2_~, the Court considered whether
24
an entity (1) has "a self-contained structure;" (2) "how close operationally" the
entity is to the President, and (3) "the nature of its delegation from the President."
_M__e_y_~, 981 F.2d at t 293. These "three factors are not necessarily to be weighed
F.2d at 1293. OA maintains a staff of about 200 employees and is organized along
the lines of seven offices, with each office having its own defined functions. See
Fiscal Year 2009 Budget). As this Court has explained, however, "while a definite
90 F.3d at 558 (internal quotations and citations omitted). Even when an office
[entity] does" possess such authority. Id. at 560. Thus, for example, while this
25
The district court found that the second Meyer factor, OA’s operational
proximity to the President, placed weight on both sides of the scale. JA 354. On
the one hand, recognizing that OA is "headed by the President" (JA 79 (Reorg.
Plan No. 1 of 1977, §2)) and that OA’s Director "report[s] to the President" and is
"subject to such direction and approval as the President may provide or require"
(EO 12028, §§2, 4), the court concluded that "OA is organizationally close the
the FOIA. On the other hand, the court stated, OA "appears to lack the same type
The district court found most relevant in this context the third factor in the
Meyer analysis, the nature of OA’s delegated authority. JA 354-55. As the court
reiterated, far from wielding any substantial independent authority, OA’s only
EOP, including direct support to the President. See JA 79 (Reorg. Plan No. 1 of
1977, §2); EO 12028, §§ 2, 3(a). Indeed, even the performance of its purely
4. Like the staff of the Executive Residence, the district court pointed out, OA has
no program or policy responsibilities, nor does it have any power to issue formal,
26
legally authoritative commands to entities or persons outside EOP. OA exists
and, under settled principles, OA does not meet FOIA’s definition of "agency."
See JA 355-56.~
significance to one of the three criteria noted in Meyer. See Appellant’s Br. 28-
31. Those factors, which were developed to assess the status of an inter-agency
task force, are a means for determining the issue of whether a body exercises
substantial independent authority, and they are useful only insofar as they
illuminate that issue in a particular case. In any event, the district court
concluded that "the nature of OA’s delegated authority is entirely dissimilar to that
subject to the FOIA." JA 355. Having determined that OA is not an agency under
Soucie, the district court properly rejected plaintiff’s contention that a different
result was mandated by Me_M__~. See JA 352 ("The court is compelled to reach the
same conclusion - that OA is not an agency subject to the FOIA - when it applies
the district court noted, this Court faced a similar issue in Armstrong, in holding
that the National Security Council is not a FOIA agency notwithstanding that, on
prior occasions, NSC had held itself out as subject to the FOIA. As this Court
explained, "NSC’s prior references to itself as an agency are not probative on the
question before the Court - whether the NSC is indeed an agency within the
"quite simply, the Government’s position on that question has changed over the
years," and an entity’s earlier stance that it was covered by FOIA (and the Federal
Records Act) "should not be taken to establish as a matter of law that [it] is subject
28
As OA’s General Counsel explained in a declaration in the record (JA 175-
79), "the issue of whether OA meets the FOIA definition of ’agency’ first surfaced
soon after the district court’s decision in Armstrong v. EOP, 877 F. Supp. 690
(D.D.C. 1995)." JA 176-77 (Medaglia Decl’n, ¶5). "Since that time, whether OA
met the FOIA definition of an agency was from time to time a subject of
discussion between and among the Department of Justice, OA, and the White
................................. The-record explains further that, in 2006, "the White House Counsel’s
Office requested the legal advice of the Office of Legal Counsel (’OLC’) of the
Decl’n, ¶6). "On several occasions during this deliberative process, although not
JA 177 (Medaglia Decl’n, ¶7). The final decision that OA is not subject to FOIA
was made in August 2007, "after OA and the White House Counsel’s Office
Government’s position had evolved over time, but that its change in position was
not dispositive for purposes of determining OA’s FOIA status. Especially "[i]n
light of the similarities between this case and Armstrong," JA 357, the court
committed no error in concluding that "while OA’s past functioning under the
4. Finally, plaintiff contends that the district court should have permitted
the question whether OA is an "agency" under FOIA. See Appellant’s Br. 31, 35.
Indeed, when OA initially filed a motion for judgment on the pleadings, plaintiff
opposed the motion, arguing among other things that whether OA was an agency
under FOIA was jurisdictional in nature, and that jurisdictional discovery was
called for prior to any judicial determination that OA fell outside FOIA. See
¶11). Thus, "[o]nce the final decision was reached that OA is not subject to, and
will no longer comply with, FOIA, OA began implementing its PRA status." JA
178 (Medaglia Decl’n, ¶12).
30
Plaintiff’s Opposition to Defendant’s Motion for Judgment on the Pleadings (Sept.
Freedom Of The Press., 445 U.S. 136 (1980)).3 Having taken the position in the
district court that the agency question was jurisdictional, and having, in addition,
the ability to take a contrary position in this Court. See generally Roosevelt v. E.I.
DuPont de Nemours & Co.., 958 F.2d 416, 419 & n.5 (D.C. Cir. 1992) ("it is not
court’S discovery limitations. See Islamic Am. Relief Agency v. Gonzales, 477
F.3d 728,737 (D.C. Cir. 2007) ("The district court has broad discretion in its
only for abuse of discretion.") (quoting Brune v. IRS., 861 F.2d 1284, 1288 (D.C.
Cir. 1988)). As the court explained in setting out the scope of discovery,
not in dispute, and already addressed by the record. See JA 107-08, 137-38. For
discovery regarding "services OA provides within the EOP" (Appellant’s Br. 39),
the record c~ntains evidence on that topic, see JA 283-84 (financial management
(Discovery Order). If, after obtaining discovery, plaintiff believed that discovery
dispositive motion, it was incumbent upon it to make that argument to the district
the court permitted discovery was, however characterized, the dispositive issue
before the court. Pursuant to the court’s discovery orders, OA turned over 1,300
JA 327. Plaintiff also sought and obtained the deposition of OA’s Director, Alan
testified concerning OA’s role and organization, the role and status of OA’s
Director, and the relationship between OA and various entities within and outside
EOP. See JA 277-306 (Swendiman Deposition). Mr. Swendiman also noted that,
the President, and he reported to the President through the Deputy Assistant to the
Deposition).
In complaining that Mr. Swendiman did not fully answer every question to
its satisfaction, plaintiff misses the more fundamental point that a judicial order
mandating the deposition of OA’s Director does not reflect an overly narrow
discovery process. And, while plaintiff suggests that it should have been able to
particular official who might have been able to provide additional, relevant
information.4
provide a declaration of its General Counsel, over and above the deposition of its
Director, further refutes plaintiff’s contention that the discovery it obtained was
The record shows that plaintiff was able to obtain discovery relating to, inter
alia, OA’s general procurement activities (see JA 296), its agreements with federal
agencies for the provision of specific services (see JA 298), and the OA Director’s
(see JA 295). As the Government urged in the district court,5 no discovery of any
"agency" within the meaning of FOIA. See, e._g~., Sweetland, 60 F.3d at 853
plaintiff ample discovery on the issue in question. Plaintiff waived its challenge to
CONCLUSION
For the foregoing reasons, the judgment of the district court should be
affirmed.
Respectfully submitted,
GREGORY G. KATSAS
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
MARK B. STERN
(202)514-5089 ~
THOMAS M. BONDY
(202)514-4825
Attorneys, Appellate Staff
Civil Division, Room 7535
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
SEPTEMBER 2008
35
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in compliance with Rule 32(a)(7) of the
Federal Rules of.Appellate Procedure. The brief contains 7439 words, and was
prepared in 14-point Times New Roman font using Corel WordPerfect 12.0.
THOMAS M. BONDY
Attorney for Appellee
(202)514-4825
CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of September, 2008, I served the
foregoing Brief for Appellee by causing one original and 15 copies to be delivered
by hand to the United States Court of Appeals for the District of Columbia Circuit,
and two copies to be delivered by first-class U.S. Mail, postage prepaid, to the
following counsel:
Anne L. Weismann
Melanie T. Sloan
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Telephone: (202)408-5565
THOMAS M. BONDY
Attorney for Appellee
(202)514-4825