crew v. office of administration: regarding lost white house emails: 9/18/2008 - brief for appellee

8/6/2019 CREW v. Office of Administration: Regarding Lost White House Emails: 9/18/2008 - Brief for Appellee

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[NOT YET SCHEDULED FOR ORAL ARGUMENT]No. 08-5188

IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,Plaintiff-Appellant,V.

OFFICE OF ADMINISTRATION,Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLEE

GREGORY G. KATSASAssistant Attorney G eneral

JEFFREY A. TAYLORUnited States AttorneyMARK B. STERN

(202)514-5089THOMAS M. BONDY

(202)514-4825Attorneys, Appellate StaffCivil Division, Room 7535U.S. Department of Justice950 Pennsylvania Ave., N.W.Washington, D.C. 20530


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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASESA. Parties And A mici.Plaintiff in the district court, and appellant in this appe al, is Citizens for

Responsibility and Ethics in Washington.Defendan t in the district court, and appellee in this appeal, is the Office of

Adm inistration, a com ponent of the E xecutive Office of the President.Judicial W atch, Inc., was am icus curiae in supp ort of plaintiff in the district

court, and is am icus curiae in support of a ppellant in this appeal.B. Rulings Under Review.The ruling under review is the decision in Citizens for Respon sibility and

Ethics in W ashington v. Office of Adm inistration, Civil Action No. 07-964 (CK K )(D.D.C. June 16 , 200 8) (Judge C olleen K ollar-K otelly). The ruling is reported at559 F. Supp. 2d 9, and is reproduced in the Joint Appendix at JA 322 -61.

C .. Related Cases.This case has no t been before this or any other Cou rt. Coun sel for appellee

are not aware o f any related cases.

THOMAS M. BONDYAttorney for Appellee(202)514-4825


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TABLE OF CONTENTS

CERTIFICATE AS TO PA RTIES, RULING S, AN D RELATED CA SESGLOSSARYST AT EM EN T O F JU RIS DIC TIO N ....................................................................... 1STATEMEN T OF THE ISSUE . ................................................................. 2STATEMENT OF THE CASE ................................................................................ 2STA TE M EN T OF FA CT S ............................................................ , ......................... 2

I. Statutory Background: The FOIA And Its DefinitionOf"Agency" ........................................................................................ 2II . Prior Proceedings ................................................................................ 3

A. Plaintiffs Complaint And The Governments MotionFor Judgment On The Pleadings ...............................................3B. OA s Motion To D ismiss And The D istrict CourtsDecision Granting That Motion ................................................ 5

SUMMARY OF ARGUMENT ...............................................................................9STAN DARD O F REVIEW . .. .. .............................................................................. 11ARGUMENT ......................................................................................................... 12

THE EXECUTIVE OFFICE OF THE PRESIDEN TS OFFICE OFADMINISTRATION IS NOT AN "AGENCY" WITHIN THEMEANING OF THE FOIA .........................................................................12OA H as No Substantial Independent AuthorityAnd Its Function Is To Advise And AssistThe President 12


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Plaintiff Demonstrates No Relevant SimilaritiesBetween The Administrative Office And AnyComponent Of The E OP That This Court HasDe em ed A FO IA Ag enc y ............................................. 18

CO N CL US ION ...................................................................................................... 35CERTIFICATE OF COMPLIANC ECERTIFICATE OF SERVICE


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TABLE OF AUTHORITIESCases: ~

Armstrong v. EOP, 877 F. Supp. 690 (D.D.C. 1995) .................................... 29, 30* Armstrong v. Exec. Office of the President, 90 F.3d 553(D.C. Cir. 1996) ................... . ............................................. 3, 8, 17, 23, 25, 28

B rune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988) .......................................... 31Islamic A m. R elief Agency v. Gonzales, 477 F.3d 728 (D.C. Cir. 2007) ..... 11, 31K issinger v. Reporters Com mittee For Freedom O f The Press,

445 U.S. 136 (1980) .................................................................................... 31* Meyer v. B ush, 981 F.2d 1288 (D.C. Cir. 1993) .......... 7, 9, 13, 16, 17, 20 , 23-28* Pacific Legal Foundation v. Council on Envtl. Quality., 636 F .2d 1259

(D .C. Cir. 19 80 ) ....................................................................................... 7, 16Roosevelt v. E.I. DuPont de Nemours & Co., 958 F.2d 416

(D.C. Cir. 1992) ............ : .............................................................................. 31* Rushforth v. Council of Economic Advisers, 762 F.2d 1038

(D .C. Cir. 19 85) ..................................................................................... 16, 17* Sierra Club v. Andros, 581 F.2d 895 (D.C. Cir.), revd on other grounds,442 U.S. 347 (1978) ................................................................................ 7, 17* Soucie v. David, 448 F.2d 1067

(D .C. Cir. 19 71 ) ............................. 3, 5, 6, 8, 9, 12, 13, 15, 16, 21, 23, 24 , 28* Sweetland v. Walters, 60 F.3d 852(D.C. Cir. 1995) ................................................. 5, 7-10, 13, 16, 17,24, 27, 34

*Au thorities chiefly relied upon are m arked w ith an asterisk.1 1 1


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Statutes:

3 u.s.c. 3 u.s.c. 3 u.s.c. 105 (b)( 1 ) ............................................................................................ 27109 ...................................................................................................... 27110 .................................................... , .................................................. 27

5 U.S .C. 552 .................................................................................................... 1, 25 u.s.c. 552(0 ................................................................... ................................. 328 U.S.C. 1291 ..................................................................................................... 228 U.S.C. 1331 ................................................................. ................................... 131 U.S .C. 50 2 ........................................................................... : ........................ 1840 U .S.C.40 U .S.C.40 U .S.C.40 U .S.C.40 U .S.C.40 U .S.C.40 U .S.C.

301 ..................................................................... . ............................... 21 30 2 ...................................... ~ ............................................................. 22 501 ................... : ................................................................................ 22 521 .................................................... ................................................ 22 541 .................................................................................................... 22 581 ..................................................................................................... 22 3302 ..................... ............................................................................. 22 4342 .................................................................................................. 18 6612 .................................................................................................. 18

Regulations:41 C.F .R. Ch. 10 1 ................................................................................................ 22

Rules:Fed. R. App. P. 4(a)(1) ........................................................................................... 2

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Miscellaneous:Execu tive Order 12028 2 ............................................................................ 14, 26Executive Order 12028 3(a) .................................................................. 19, 20, 26Execu tive Order 12 02 8 4 ........... ................................................................. 15, 26Executive Order 12028 4(a) .............................................................................. 23Execu tive Order 120 28 4(d ) .................................................................. 15, 16, 18Execu tive Order 12028 5 ..................................................................................19Executive Order 12122 4(d) ................................................................................ 6H.R. Rep . N o. 93 -1380 , at 14 (19 74 ) ..................................................................... 3H .R . R e p . N o . 1 6 3 5 , 8 7 th Cong., 2d Sess. 9 (1962) ............................................. 15


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CEACEQEOEOPFOIAGSAN SCOAOLCOM BOST

GLOSSARYCouncil of Economic AdvisersCoun cil on Environm ental Q ualityExecutive OrderExecutive Office of the PresidentFreedom o f Information ActGeneral Services A dministrationN ational Security Co uncilOffice of A dministrationOffice of Legal CounselOffice of Management and B udgetOffice of Science and Technology


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IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 08-5188

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,Plaintiff-Appellant,

V.OFFICE OF ADMINISTRATION,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLEE

STATEMENT O F JURISDICTIONIn this action under the Freedom of Information Act ("FOIA"), plaintiff

invoked the district courts 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 enteredfinal judgment, dismissing the case in its entirety. JA 322 (Order); JA 323-61(Memorandum Opinion). Plaintiff filed a timely notice of appeal on the same


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controlled corpo ration, or other establishment in the execu tive branch of theGovernm ent (including the Executive Office of the President), or any independen tregulatory agency." 5 U.S.C. 55 2(f).

In adopting the current definition of FO IA in 19 74 , Congress codified thisCourts decision in Soucie v. David, 448 F .2d 1067 (D.C. Cir. 1971 ), which hadinterpreted the previous definition to e xclude parts of the E xecutive Office of thePresident that served only to advise and assist the President and did not wieldsubstantial indep enden t authority in the exercise of sp ecific functions." Id. at107 3, 1075. See H.R. Rep. N o. 93-1380, at 14 (197 4); see also Armstrong v.Exec . Office of the President, 90 F.3d 553,558 (D.C. Cir. 1996 ).

II. Prior Proceedings.A. Plaintiffs C omp laint And T he G overnments Motion

For Judgment On T he Pleadings.The O ffice of Adm inistration is a com ponent of the Executive Office of the

President ("EOP"). Initially established by President Carter in 19 77 , OA providesadministrative support and services to units within EOP . JA 327- 28.

In April 200 7, plaintiff sent two FOIA requests to OA seeking recordsrelating to OA s potential loss of email docum ents. The Office acknow ledgedreceipt of the FO IA requests, and granted p laintiffs dem and for e xpedited


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processing. In May 20 07 , when there had not yet been any production of records,plaintiff filed this action in district court, seeking an o rder com pelling disclosureof the requested materials, and interim injunctive relief. JA 325.

In June 20 07 , pursuant to a stipulated schedule, OA made its first responseto plaintiffs FOIA requests, producing 50 pages of responsive docum ents andwithholding other potentially responsive records pu rsuant to underlying FO IAexem ptions. In conjunction w ith its response, OA also informed plaintiff that itwas not. an "agency." within the meaning o f FOIA , but w as nevertheless electing toprocess plaintiffs FOIA requests "as a m atter of administrative discretion." JA326. In a second response to plaintiffs FOIA requests in Au gust 2007 , OAadvised that it had located and w as withholding ad ditional potentially responsivedocum ents, and reiterated that it was n ot an "agency" subject to FO IA. Ibid.

OA subsequen tly filed a mo tion for judgm ent on the pleadings, arguing thatit was entitled to judgment as a m atter of law because it was no t an agency as thatterm is defined in the FOIA . Plaintiff oppo sed the mo tion, asserting among o therthings that the question whether OA was a F OIA agency w as jurisdictional, andseeking jurisdictional discovery prior to judicial resolution of OA s FOIA status.See Plaintiffs Oppo sition to Defend ants Motion for Judgm ent on the Pleadings(Sept. 4, 2007 ), at 20 & nn. 23, 24. The district court, in February 200 8, denied


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OAs motion without prejudice, allowing the parties to conduct "very limiteddiscovery - which might be considered jurisdictional in nature." JA 326.

Pursuant to the courts discovery orders, OA produced to plaintiff over1,300 pages of documents, and plaintiff took the deposition of OAs Director.Ibid. OA also provided a declaration of its General Counsel, addressing OAsposition regarding its FOIA status over time. JA 175,327.

B. OA s M otion To D ismiss And Th e District C ourtsD ecision Granting That Motion.After discovery, OA filed a motion to dismiss for lack of subject matter

jurisdiction, on the basis that it was not a FOIA "agency" and that the district courttherefore lacked jurisdiction over plaintiffs FOIA action. After briefing by theparties, the district court issued a memorandum opinion and order granting themotion and dismissing the case. JA 322-61.

Noting that the FOIAs definition of"agency" was intended to codifyS oucie, su_u_p_r~, the district court emphasized that "[f]ollowing Soucies lead,every one of the EOP units that [the D.C. Circuit has] found to be subject to FOIAhas wielded substantial authority independently of the President." JA 343(quoting Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995)). After athorough review of the record, the court concluded that the "OA is not an agency

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subject to the FOIA," because "OA lacks the type of substantial independentauthority that the D.C. Circuit has found indicative of agency status for other EOP

compo nents when applying the Soucie criteria, and because the nature of OAsdelegated authority is dissimilar to that of other EOP units that have been found tobe agencies subject to the FOIA." JA 342.

The court observed that, under Reorganization Plan No. 1 of 1977, whichcreated OA, and ensuing Executive Orders, OA is empowered to provide a broadrange of administrative services to EOP components, but is not invested with anyauthority beyond providing such services within EOP. JA 348. Indeed, as thedistrict court pointed out, the applicable Executive Orders make explicit that OAsDirector "shall not be accountable for the program and managementresponsibilities of units within [EOP]: the head of each unit shall remainresponsible for those functions." Ibid. (quoting Executive Order 12122, 4(d)).

The court considered the evidence of OAs actual functions, acknowledgingthat "[t]hese activities certainly demonstrate that OA has substantial operations, asdoes the fact that OA employs over 200 individuals and is organized along seven

different organizational lines." JA 350-51. OAs activities, however, includingcontracting for supplies and services, do not demonstrate that it has any"substantial independent authority to direct executive branch officials,

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~p ossess[es] any delegated regulatory authority to supervise agencies, or has the~po wer to issue formal, legally authoritative comm ands to entities or persons

within or outside the executive branch." JA 3 51 (quoting Meyer v. B ush, 9 81F.2d 1288, 1292, 1293, 1297 (D.C. Cir. 199 3)).

The co urt contrasted the pow ers of the Office of Adm inistration w ith thoseof the Office of S~ ience and Technology and the C ouncil on Environme ntalQu ality, two EOP comp onents that this Court has found to fall within the FO IAsdefinition of agen cy. "Significantly," the court stated, OA "does not oversee an dcoordinate federal programs, as does the Office of Science and Technology, orprom ulgate binding regulations, as does the Cou ncil on Environm ental Quality."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 CEQis a FOIA agency). "N or does OA, like the Office of Managem ent and B udget,have statutory duties to report to C ongress." JA 351 (citing Sierra Club v.Andrus, 581 F.2d 895 (D .C. Cir. 197 8), revd on other grounds, 44 2 U.S. 347(1979)).

"Instead," the court stressed, "OA p erforms a variety of adm inistrativefunctions for EOP co mp onents, and the OA Director is specifically relieved ofsubstantive responsibility for those units." JA 35 1. Thus, w hile recognizing that


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the specific context bearing upon an EO P com ponents FO IA status will vary w iththe entity at issue, the court indicated that this case wa s perhaps m ost comp arableto Sweetland, wh ere this Co urt held that the Executive Residence w as not a FOIAagency, because the "staff of the Executive Residence exercises none of theindependent authority that we found to be critical in holding other entities thatserve the President to be agencies subject to FO IA." JA 34 5 (quoting Sweetland,60 F.3d at 854 ); JA 34 6. For these reasons, "the [c]ourt conclude[d] that, becauseOA serves only to assist and adv ise the President, and does no t exercisesubstantial indepe ndent autho rity, it is not an agency su bject to the FO IA, pursuan tto the factors in Soucie." JA 352.

The district court noted that OA ha d previously con sidered itself to besubject to the FO IA, but explained that the O ffices earlier view did not alter theanalysis. JA 356-58. As the court observed, this Court in Armstrong concludedthat the National Security Council ("NS C") was exem pt from FO IAnotwithstanding that NS C had at times con sidered itself within FO IA, explainingthat "NS Cs prior references to itself as an agency are not probative on thequestion before the court - whether the N SC is indeed an agencY within themeaning of the FOIA." JA 356-57 (quoting Armstrong, 90 F.3d at 566).


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Similarly, "OAs own assessment of its legal status under the FOIA * * * is notdispositive." JA 358.

S UM M A R Y O F A R G U M E N TAs the district court explained, placement of an entity within the Executive

Office of the President does not take it outside the scope of the FOIA when suchan entity can "act directly and independently beyond advising and assisting thePresident." Meyer, 981 F.2d at 1292 (citing Soucie, 448 F.2d at 1075). However,"in cases involving units of the Executive Office that lacked substantialindependent authority, we have consistently rejected the claim that they weresubject to the FOIA." Sweetland, 60 F.3d at 854.

Applying these standards, the district court correctly concluded that theOffice of Administration is not an "agency" because it exercises no substantialindependent authority over matters of public or regulatory policy and has nofunction beyond its mandate to provide administrative support to the President.Unlike those EOP components that this Court has held are FOIA agencies, OA hasno authority to issue guidelines to federal agencies, to coordinate and evaluate

federal programs, to oversee activities of federal agencies, or to perform othersignificant statutory duties.

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The 1 977 Message of the President transmitting the underlyingReorgan ization Plan to Con gress explained that the changes to EO Ps structure,including the creation of O A, "are based on the premise that the EO P exists toserve the President and should be structured to meet his needs." JA 81 ( Messageof the President). The OA s charter documen ts establish the Office as acentralized adm inistrative unit within the Executive O ffice of the President, .wh oseDirector is appointed by and answ erable to the President. The A dm inistrativeOffice provides no services to other parts of the Ex ecutive B ranch or to C ongress,and it cannot plausibly be though t to "w ield[] substantial authority independentlyof the President," Sweetland, 60 F.3d at 854, the hallmark of every unit of the EOPthat this Court has deemed a FO IA agency.

Plaintiffs challenge to the district courts ruling m isapprehend s thegoverning analysis. As the district court recognized, it was required to determinewh ether, regardless of its placem ent with the EOP , the Adm inistrative Officeexercises substantial indepe ndent au thority. Con trary to plaintiffs understanding,the OA s ability to enter into contracts as a m eans of p roviding administrativeservices within EOP does not co nstitute the type of substantial independ entauthority discussed in this Cou rts decisions. N or, as the district court explained,is it relevant that the OA serve s the President by providing a dm inistrative services

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generally within the EO P rather than d irectly and exclusively to the Presidenthimself.

Plaintiff likew ise errs in urging that it was entitled to additional discovery.Plaintiff, in district court, argued that the co urt could no t grant the governm entsmotion for judgment on the pleadings because a com ponents status as an"agency" is jurisdictional. In response, the court permitted plaintiff limiteddiscovery on that question, including the deposition of the D irector of the O fficeof A dm inistration. In a reversal of position, plaintiff now argues that the issue ofagency status w as not jurisdictional, and that the court could n ot allow m erely"jurisdictional" discovery. Plaintiff has plainly w aived that argum ent and, u nderany standard, the discovery perm itted by the district court wo uld not co nstitute anabuse of d iscretion.

STA N DA RD OF REVIEWThe d istrict courts determination that O A is not an "age ncy" w ith the

mean ing of the FOIA presents a legal issue reviewable de n ovo. The courtsdiscovery rulings are reviewed for abuse of d iscretion. See Islamic Am. R elief

Agency v. Gonzales, 477 F.3d 728, 737 (D.C. Cir. 2007 ).

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ARGUMENTTH E EX EC UTIVE OFFIC E OF TH E P RESIDEN T S OFFIC EO F A D M I N I S T RA T I O N I S N O T AN "AGENCY"

W I T H I N T H E M E A N IN G O F T H E F O IAA. OA H as No Substantial Independent Authority AndIts Function Is To Advise An d Assist The President.1. In enacting the current definition of agency , Congress cod ified this

Courts analysis in Soucie v. David, 44 8 F.2d 1067 (D.C. Cir. 197 1), which, as

the district court noted, "interpreted the o riginal definition ofagency under theFO IA to include any adm inistrative unit with substantial indepe ndent authority inthe exercise of specific functions, id. at 107 3, and conc luded that theOffice of Science and Technology w as an agency because its sole function w as[not] to advise and assist the President, id. at 1075 ." See JA 339.

In concluding that the Office of Science and Technology w as an agency,notw ithstanding its inclusion in the EO P, this Court in Soucie emphasized that theOST had inherited its independent authority "from the N ational ScienceFound ation, to which Co ngress had delegated som e of its own broad p owe r ofinquiry, and that[w]hen the responsibility for program evaluation w astransferred to the OST , both the executive branch and m embers of C ongresscontemplated that Congress would retain control over information on federal

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programs accum ulated by the OST, despite any confidential relation between theDirector of the OS T and the President." JA 34 3 (quoting Soucie, 448 F.2d at

107 5). As this Court observed in Sw eetland v. W alters, 60 F.3d 852 (D.C. Cir.199 5), OST "was subject to FOIA because it had independent authority to evaluatefederal scientific programs, initiate and support research, and award scholarships."Id. at 854 (citing Soucie, 44 8 F.2d at 1075); see also Meyer v. B ush, 981 F.2d at1292 ("Although we acknowledged that OST advised and assisted the President,we em phasized that OST a lso had inherited from the N ational Science Foundationsubstantial indep enden t authority, such as evaluating fede ral program s, initiatingand supporting research, and awarding scholarships.").

2. As these decisions make clear, an entity w ielding substantial independentauthority may be an agency for purpo ses of FOIA notwithstanding its placement inthe EO P. "B y contrast, in cases involving units of the Executive Office thatlacked sub stantial indepe ndent authority, we h ave con sistently rejected the claimthat they were subject to the FOIA." Sweetland, 60 F .3d at 854. OA wields nosuch authority.

That OA exists to provide adm inistrative support and assistance to thePresident, and has no substantial independent authority, is plain from OA s charterdocum ents. Reorganization Plan N o. 1 of 1977 , issued by President Carter,

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"established in the Executive Office of the President the Office of Administrationwhich shall be headed by the President." JA 79 (Reorg. Plan No. 1 of 1977, 2).

The Reorganization Plan declared: "The Office Of Administration shall providecomponents of the Executive Office of the President with such administrativeservices as the President shall from time to time direct." Ibid. The Director of theOffice of Administration, who is appointed by the President, serves "as chiefadministrative officer of the Office of Administration." Ibid.

The Message of the President transmitting the Reorganization Plan toCongress explained that the changes to EOPs structure, including the creation ofOA, "are based on the premise that the EOP exists to serve the President andshould be structured to meet his needs." JA 81 (Message of the President). TheMessage explained that "[t]he EOP has never before been organized as a single,unified entity serving the President," and that OA, as a new, centralizedadministrative unit, would be "[a] base for an effective EOP budget/planningsystem through which the President can manage an integrated EOP." JA 86(Message of the President).

Executive Order 12028, also issued in 1977, effectuated OAsestablishment, providing that OAs Director "shall report to the President" (EO12028, 2); "shall be responsible for ensuring that [OA] provides units within

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[EOP] common administrative support and services" (ibid.); and, "[s]ubject tosuch 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). Asamended by Executive Order 12122 in 1979, EO 12028 specifies, however, thatOAs "Director shall not be accountable for the program and managementresponsibilities of units within [EOP]; the head of each unit shall remainresponsible for those functions." EO 12028, 4(d), as amended by EO 12122.

The contrast with the creation of the O ST, discussed in Soucie., is evident.This Court emphasized the understanding of the House Committee on GovernmentOperations that establishment of OST would facilitate the transmission ofinformation to Congress. The Committee declared that "[w]ith the creation of thenew office the Director will become available to Congress and provide us withmore information than we now obtain." Soucie, 448 F.2d at 1075 (quoting H.R.Rep. N o.1635, 87th Cong. , 2d Sess . 9 (19 62)) .

The Office of Administration provides no analogous assistance to any part

of the Government outside of the EOP. Nor does OA have any substantiveauthority over any component within EOP. As noted, OAs "Director shall not beaccountable for the program and management responsibilities of units within

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[EOP]; the head o f each unit shall remain responsible for those functions." EO12028, 4(d).

As the district court recognized, this Court has never held a p art of the EOPto constitute an agency abse nt such Substantial independen t authority. JA 343 ; seeSweetland, 60 F.3d at 854 ("[E]very one of the EO P units that [the D.C. Circuithas] found to be su bject to FO IA has wielded substantial authority independentlyof the President.") (citing ~, 981 F.2d at 1292). As noted, the Office ofScience and Tech nology was held to be a FO IA agency because it had "theindependen t function of ev aluating federal [scientific] programs." Soucie, 4 48F.2d at 107 5. The Council on Environmen tal Q uality was deemed a FO IA agencybecause v arious Executive Ord ers have authorized it to "issue guidelines to federalagencies," "coordinate federal programs related to environm ental quality," "issueregulations to federal agencies for imp lemen ting all of the procedural provisionsof [the National Environmental Policy Act]," and oversee certain activities ofother federal agencies. JA 343 ; Pacific Legal Fo undation v. Council on Envtl.Quality., 636 F.2d 1259, 1262 (D .C. Cir. 1980); see Ru shforth v. Cou ncil ofEconomic Advisers, 762 F.2d 1038 , 1041 (D.C. Cir. 1985). Similarly, the Officeof Man agemen t and B udget is subject to the FOIA s disclosure requirementsbecause it has the authority to "assem ble, correlate, revise, reduce, or increase the

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requests for appropriations of the several departm ents or establishments," and "inaddition to its mu ltitudinous other m anagem ent, coordination, and adm inistrativefunctions," it "has a statutory duty [to Co ngress] to prepare the B udget." SierraClub v. An drus, 581 F.2d 895,902 & n.25 (D.C. Cir. 1978)..

B y the same token, the absence of substantial indepe ndent authority hassignaled that. a com ponent of the EO P is not an agency under the FO IA. Thus, theCouncil of Econom ic Advisers is not a FOIA agency because it does "not possessany delegated regu latory authority to supervise agen cies," Meyer, 981 F.2d at1293 , and has "no []power to issue formal legally authoritative comm ands toentities or persons within or without the execu tive branch," id. at 1292; seeRushforth, 76 2 F.2d at 1043 . Likewise, the N ational Security Council is not aFO IA agency becau se it does not exercise "meaningful non-ad visory authority" incoordinating the activities of the various agencies with national securityresponsibilities. Armstrong, 90 F.3d at 565. An d, the Executive Residence isexem pt from FO IA becau se it is exclusively dedicated to assisting the President inmaintaining his hom e and carrying out his various ceremo nial duties, and "doesnot oversee and coordinate federal programs * * * o r promulgate bindingregulations." Sweetland, 60 F.3d at 854.

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The O ffice of Ad ministration, like the CEA , the N SC, and the Exe cutiveResidence, does not direct or supervise com ponents of the Executive B ranch and

does n ot exercise "substantial independent authority" over regulatory and /orpublic policy matters. And, unlike the heads of OS T, CEQ , and OM B , thePresidents appointment of the OA Director is not subject to Sen ate confirmation.See 31 U.S.C. 502 (OM B ); 42 U.S.C. 4 342 (CEQ ), 6612 (O ST). Instead,mu ch like the Executive Residence, which supports the President by maintaininghis home and assisting him in his cerem onial duties, OA sup ports the President byperforming purely adm inistrative functions for EO P.. Like the ExecutiveResidences non -substantive, supporting role, OA sim ilarly is "not accountable forthe program a nd m anagem ent responsibilities" of the EOP units it suppo rts. EO12028, 4 (d) (as amended).

B. Plaintiff Dem onstrates N o Relevant SimilaritiesBetween Th e A dministrative Office A nd A nyComp onent Of The EOP That This Court H asDeemed A FOIA A gency.1. Plaintiff fails entirely to dem onstrate any m aterial similarities between

the Adm inistrative Office and those com ponen ts of the EOP that this Court haspreviously held to be F OIA agencies. Although plaintiff baldly asserts that "OA isan agency b ecause its does not advise and assist the President," App ellants B r. at

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27, it cannot dem onstrate that OA possesses relevant authority with regard to anyother part of the Executive B ranch. Plaintiffs argumen t, instead, is that the OAdoes not prov ide services directly to the President but perform s its wo rk for theEOP gen erally. See EO 120 28, 3(a) (OA provides comm on adm inistrativesupport and services to EOP compon ents "except for such services providedprimarily in direct support of the President" ); see also id. 5.

This argum ent fundam entally misunderstands the relevant analysis. As thedistrict court noted, wh ile plaintiff"is correct that OA s charter docum ents do no tgenerally authorize O A to provide a dm inistrative services in direct support of thePresident," "this distinction do es not establish that OA performs functions beyondadvising and assisting the President." JA 34 8. "Instead, OA s charter docume ntsand President Carters message to Congress m ake clear that OAs function is tosupp ort, i.e., assist, the Presid ent indirectly by p roviding efficient, centralizedadm inistrative services to the comp onents w ithin EO P." Ibid. (emphasis inoriginal).

W hether or not OA provides the full complement of adm inistrative services

to the Wh ite House Office that it provides to other EO co mpo nents is beside thepoint. OA is a Presidential creation established to combine adm inistrative supportoperations into a central unit within EOP so that EOP can better serve the

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Presidents needs. JA 81, 86 (Message of the P resident). As OA has explained toCongress, OA s mission is to provide the necessary adm inistrative support "so thatpolicy-making staff elsewhere in the E OP can focus on national policy decisionswithout having the distractions caused by routine administrative services." JA 67(Executive Office of the President, Office of Administration, Fiscal Year 2006Budget).

M oreover, as the district court also emphasized (JA 34 8), EO 120 28specifically authorizes OA to provide direct support to the President upon therequest of Wh ite House Office: "The Office of Adm inistration shall, uponrequest, assist the W hite House O ffice in performing its role of providing thoseadm inistrative services wh ich are primarily in direct support of the President." EO1202 8, 3(a). And , OA has, in fact, provided such direct support. See JA 34 8-49(citing exam ples).

As the district court recognized, the issue in d etermining the status of anEO P com ponen t is not how d irectly it provides services to the President but theextent to which it provides services to Congress and exe rcises authority over otherparts of the Exec utive B ranch. Thus, as this Court observed in Meyer, the Officeof Science and Technology "w as a FOIA agency precisely because it could actdirectly and indepen dently beyond advising and assisting the President." Mez~ ,

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981 F.2d at 1292; see Soucie, 448 F.2d at 1075 ("By virtue of its independentfunction of evaluating federal programs, the OST must be regarded as an agency

subject to the Freedom of Information Act."). In contrast, the OA providesservices to the President, directly and indirectly, within the EOP.

Plaintiff mistakenly asserts that, under the district courts reasoning, "theentirety of the executive branch could be deemed a non-agency, as every agency atleast indirectly assists the President in carrying out his agenda." Appellants Br.18. This assertion underscores the extent to which plaintiff fails to come to gripswith the relevant inquiry. The Soucie test concern s the relative roles of officeswithin the EOP. If such offices provide services only within the EOP and exerciseno substantial independent authority, tl-iey do not fall within the FOIA. Thatanalysis has no applicability to agency employees who, by definition, assist anagency in the performance of its duties.

The full extent of plaintiffs mistaken analysis is demonstrated by itscontention that, that under the district courts reasoning, the General ServicesAdministration ("GSA") would not be a FOIA agency because it provides servicesthat might ultimately be characterized administrative in nature. Appellants Br.30. Plaintiff fails to note the obvious-unlike OA, GSA was established byCongress, as an "agency in the executive branch," 40 U.S.C. 301, and, by statute,

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the head of GS A is appointed by the President with the advice and consen t of theSenate, 40 U .S.C. 302 . GSA also possesses its own substantive authority with

respect to federal agencies and third parties, including co ngressionally delegatedauthority to promulgate binding regulations. See, e , 40 U.S.C. 501,521,541,581, 3302; 41 C.F.R. Ch. 101 .

As the district court noted (JA 350-51), plaintiff mistakenly seeks toestablish substantial independ ent authority by noting that OA can enter intocontracts for supplies and services, including agreem ents with federal agencies.As the cou rt explained, however, the.cited contracts are~ simply ex amples ofadm inistrative services performed for the EOP. They concern m atters such asarrangements for financial managem ent services, the reimbursemen t of expensesincurred by the Presidents attendance at events spon sored by a federal agency,and the pro vision of lim ited administrative services (e , phone services) forf~deral entities present on the White House complex for purposes of supportingEOP . See JA 330-32 ; Appellants B r. 9. For example, OA h as an agreement withthe Department of the N avy, pursuant to w hich the Navy pays OA for AT&T voicesystems operation and maintenance, because the Navy o perates the W hite HouseMess executive dining rooms located on the White House com plex. See JA 332.

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If OA co uid not enter into these types of contracts, it wo uld be poo rlyplaced to perform its role of providing adm inistrative suppo rt and services withinEOP . Indeed, as noted above, OA s charter documents specifically provide that"[s]ubject to such direction or approval as the President m ay provide or require,the Director [of OA ] shall * *4(a).

* con tract for supplies or services." EO 1 2028,

2. Plaintiffs analysis of M eyer v. B ush, Appellants B r. 28-31, is similarlywide of the m ark. This Court in Meyer articulated a three-p art formulation for"appl[ying] Soucie" and determining whether those who both advise thePresident and supervise others in the executive branch exercise ~su bstantialindependent authority and hence should be deemed an agency subject to theFOIA." Armstrong, 90 F .3d at 558; see Me_ M__ e_y~, 981 F.2d at 1293. The Court inthat case ultimately determined that President Reagans T ask Force o n Regu latoryRelief"was not a body w ith substantial independen t authority to direct executivebranch officials. The various cabinet members of the T ask Force wereunquestionably officers who wielded great authority as heads of their departments.

B ut there is no indication that when acting as the Task Force they w ere to exercisesubstantial indep enden t authority, nor in fact, did they do so." Id. at 1298.

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As the district court noted, the question confronted by ~ in analyzing afederal task force com posed in part of agency heads is not presented here. See JA341 -42 . Similarly, this Court did not app ly the three-part test in Sweetland, a casedecided after Me2_~ , in determining that the staff of the Executive Residence wasnot subject to FOIA because "[t]he staff does not oversee and coordinate federalprogram s * * * or prom ulgate binding regulations." Sweetland, 60 F .3d at 854.

As the district court also explained, ~s three-part test for applying theSoucie standards to the problems posed by an inter-agency task force did notsupplant the analysis generally applicable in determining the status of an EOPcomp onent. Thus, just as OA is not an "agency" under Soucie itself, it is also no tan "agency" und er Me2~ ers elaboration of S oucie. See JA 34 2 ("U ltimately, thecourt concludes that OA is not an agency subject to the FO IA und er either rubric,because O A lacks the type o f substantial independent authority that the D .C.Circuit has found indicative of agency status for other EOP com ponents w henapplying the Soucie criteria, and becau se the nature of OA s delegated authority isdissimilar to that of other EOP units that have been found to be agencies subject to

the FOIA.").Application of the three considerations set out in ~ demonstrates that

plaintiffs argumen t fails on any terms. In Me2_ ~, the Court considered w hether24


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an entity (1) has "a self-contained structure;" (2) "how close op erationally" theentity 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 weighedequally; rather, each factor w arrants consideration insofar as it is illuminating inthe particular case." Armstrong, 90 F.3d at 558.

There is no question that OA has "a self-contained structure." Mey_~ , 981F.2d at 1293. OA maintains a staff of about 200 em ployees and is organized alongthe lines of seven o ffices, with each office having its own defined functions. SeeJA 3 30; JA 221 (E xecutive Office of the P resident, Office of A dministration,Fiscal Year 2009 B udget). As this Court has explained, however, "wh ile a definitestructure m ay be a prerequisite to qualify as an establishment w ithin the execu tivebranch * * * not every establishment is an agency under the FOIA." Armstrong,90 F.3d at 558 (internal quotations and citations omitted). Even w hen an o ffice"has a structure sufficiently self-contained that the entity could exercisesubstantial independent au thority, * * * [t]he remaining question is w hether the[entity] does" possess such authority. Id. at 560 . Thus, for examp le, while thisCourt determined that the N SC has a self-contained structure, it neverthelessconcluded that N SC does not have substantial independent author.ity so as toqualify as an "agency" under FO IA. See id. at 560, 565 .

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The d istrict court found that the second Meyer factor, OAs operationalproxim ity to the President, placed weight on both sides of the scale. JA 35 4. Onthe one hand, recognizing that OA is "headed by the President" (JA 79 (Reorg.Plan N o. 1 of 19 77 , 2)) and that OAs D irector "report[s] to the President" and is"subject to such direction and approval as the President may p rovide or require"(EO 1202 8, 2, 4), the court concluded that "OA is organizationally close thePresident." JA 354 . This conclusion militates in favor of exclusion of O A fromthe FO IA. On the other han d, the court stated, OA "ap pears to lack the same typeof operational proximity to the President" as certain other EOP com ponents, suchas the N ational Security Council. Ibid.

The d istrict court foun d m ost relevant in this context the third factor in theMeyer analysis, the nature of O As delegated authority. JA 3 54-55. A s the courtreiterated, far from w ielding an y substantial independent authority, OAs onlydelegated autho rity is to provide adm inistrative support and assistance w ithinEOP , including direct support to the President. See JA 79 (Reorg. Plan N o. 1 of197 7, 2); EO 12 028 , 2, 3(a). Indeed, even the performan ce of its purelyadministrative functions is subject to Presidential approval. See EO 12028, 2,4. Like the staff of the Executive Residen ce, the district court pointed out, OA h asno program or policy responsibilities, nor does it have any pow er to issue formal,

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legally authoritative comm ands to entities or persons outside EOP. O A existssolely to advise and-assist the President on adm inistrative matters internal to EO P,and, under settled principles, OA d oes not m eet FOIA s definition of "agency."See JA 355-56.~

Contrary to plaintiffs thesis, this analysis attaches no disproportionatesignificance to one of the three criteria noted in Meyer. See App ellants B r. 28-31. Those factors, which w ere developed to assess the status of an inter-agencytask force, are a mea ns for determining the issue of whether a body ex ercisessubstantial independent authority, and they are u seful only insofar as theyilluminate that issue in a particular case. In any ev ent, the district courtexhaustively reviewed all possible questions suggested by ~ (JA 352-56), andconcluded that "the nature of O As delegated authority is entirely dissimilar to that

~ In co ncluding that the Executive Residence is not a FO IA agency, thisCourt in Sweetland noted that, "[e]ven though [app licable statutes] im poserelatively specific obligations on Residen ce staff with respect to the pub licproperty and furniture in the W hite House, they also indicate that these duties mustbe carried out under the direction of the P resident, 3 U .S.C. 10 9, or with theapproval of the President. 3 U.S.C. 110." Sweetland, 60 F.3d at 855. ThisCou rt added that, "[c]ontrary to [plaintiffs] assertions, these prov isions do notempo wer the Executive Residence staff to manage the Presidents home w ithoutregard to the Presidents wishes[,] [n]or are they inconsistent with section105(b)( 1)s general comma nd that such employees shall perform such officialduties as the President may prescribe. 3 U.S.C. 105 (b)(1)." Ibid. To the extentplaintiff here seeks to resuscitate analogous argum ents (see App ellants B r. 16-17), Svceetland mandates their rejection. See JA 345.

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of the other EOP comp onents that the D .C. Circuit has found to be agenciessubject to the FOIA ." JA 355 . Having determined that OA is not an agency underSoucie, the district court properly rejected plaintiffs contention that a differentresult was m andated by Me_M __~ . See JA 352 ("The court is compelled to reach thesame conclusion - that OA is not an agency subject to the FOIA - wh en it appliesthe three-factor test set forth in Me2_e.").

3. Plaintiff insists that OA sho uld nevertheless be deemed a F OIA agencybecause it previously considered itself to be o ne. See A ppellants B r. 22-24. Asthe district court noted, this Court faced a similar issue in Armstrong, in holdingthat the Na tional Security Council is not a FO IA agenc y notw ithstanding that, onprior occasions, N SC had held itself out as subject to the FO IA. As this Courtexplained, "N SC s prior references to itself as an agency are not probative on thequestion before the Court - whether the N SC is indeed an agency w ithin themeaning of FOIA." Armstrong, 90 F.3d at 566. This Court recognized that,"quite sim ply, the G overnm ents position on that question has chan ged over theyears," and an entitys earlier stance that it was covered by F OIA (a nd the FederalReco rds Act) "sho uld not be taken to establish as a m atter of law that [it] is subjectto those statutes." Ibid.

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As O As General Cou nsel explained in a declaration in the record (JA 1 75-79 ), "the issue of wh ether OA m eets the FOIA d efinition of agency first surfacedsoon after the district courts decision in Armstrong v. EOP, 877 F. Supp. 690(D.D.C. 1995)." JA 17 6-77 (Med aglia Decln, 5). "Since that t ime, w hether OAmet the FO IA definition of an agency w as from time to time a subject ofdiscussion between and am ong the Departm ent of Justice, OA , and the WhiteHouse C ounsels Office." Ibid.

Office requested the legal advice of the Office of Legal Counsel (O LC) o f theDepartment of Justice regarding OAs status under FOIA ." JA 17 7 (M edagliaDecln, 6). "On several occasions during this deliberative process, although notconsistently, OA included language in its FOIA responses advising the requestersthat OA w as processing their requests as a matter of adm inistrative discretion."JA 17 7 (M edaglia Decln, 7). The final decision that OA is not subject to FOIAwas m ade in August 200 7, "after OA and the W hite House Counsels Officereceived [an] OLC[] m emorand um formally mem orializing its legal advice." JA177 (Medaglia Decln, 8).2

2 As OAs General Counsel noted as well, "the decision that OA is notsubject to the FOIA is also a decision that OA is subject to the PRA [PresidentialRecords Act], and not the FRA [Federal Records Act]." JA 178 (Medaglia Decln,

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Against this backdrop, the district court properly recognized that theGovernm ents position had evo lved over time, but that its change in p osition w asnot dispositive for purposes of determining O As FO IA status. Especially "[i]nlight of the similarities between this case and Arm strong," JA 3 57, the courtcom mitted no error in concluding that "while OA s past functioning under theFO IA" is und isputed, "it is also insufficient by itself to establish that OA is, as amatter of law, an agency subject to the FOIA." JA 358.

4. Finally, plaintiff contends that the district court should hav e perm ittedfurther discovery, and un duly limited discovery b ecause it treated as jurisdictionalthe question w hether OA is an "agency" under FO IA. See App ellants B r. 31, 35.

Plaintiffs cannot properly challenge the district courts characterization ofthe discov ery as directed to a jurisdictional question . In its district courtpleadings, plaintiff itself characterized the "agen cy" qu estion as jurisdictional.Indeed, when OA initially filed a motion for judgm ent on the pleadings, plaintiffopposed the m otion, arguing am ong other things that whether OA was an agencyunder FOIA was jurisdictional in nature, and that jurisdictional discovery was

called for prior to any judicial determination that O A fell outside FO IA. See11). Thus, "[o]nce the final decision was reached that OA is not subject to, andwill no longer comply with, FOIA, OA began implementing its PRA status." JA178 (Medaglia Decln, 12).

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Plaintiffs Opposition to Defendan ts M otion for Judgmen t on the Pleadings (Sept.4, 2007), at 20 & nn. 23, 24 (citing Kissinger v. Reporters Committee ForFreedom Of The P ress., 445 U.S. 136 (1980)).3 Having taken the position in thedistrict court that the agency question was jurisdictional, and h aving, in addition,successfully obtained jurisdictional discovery on that basis, plaintiff has waive dthe ability to take a co ntrary position in this Court. See gene rally Roo sevelt v. E.I.DuPont de N emours & Co.., 958 F .2d 416, 419 & n.5 (D.C. Cir. 1992) ("it is notour practice to entertain issues first raised .on appeal").

In any event, plaintiff demonstrates no abuse of discretion in the districtcourtS discovery limitations. See Islamic Am. Relief Agency v. Gonzales, 47 7F.3d 728,7 37 (D.C. Cir. 2007 ) ("The d istrict court has broad discretion in itshandling of discovery, and its decision to allow or deny discovery is reviewableonly for abuse of discretion.") (quoting B rune v. IRS., 861 F.2d 1284, 1288 (D.C.Cir. 1988)). A s the court explained in setting out the scop e of discovery,plaintiffs discovery requests encom passed a range of issues that were cum ulative,not in dispute, and already addressed by the record. See JA 10 7-0 8, 137-38. For

3 Similarly, when p laintiff opposed O As mo tion to dismiss for lack ofsubject matter jurisdiction, plaintiff nowhere suggested that the issue before thecourt was no t jurisdictional. See Plaintiffs Opposition To D efendants M otion ToDismiss For Lack O f Subject Matter Jurisdiction (May 9, 20 08).

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example, while plaintiff suggests that the district court permitted insufficientdiscovery regarding "services OA provides within the EOP" (Appellants Br. 39),

the record c~ntains evidence on that topic, see JA 283-84 (financial managementservices); JA 293-94 (procurement agreements); JA 302 (common support to EOPcomponents), and, as the district court observed, "there is no dispute that OAprovides extensive administrative services to all EOP components." JA 137(Discovery Order). If, after obtaining discovery, plaintiff believed that discoveryrestrictions had materially undermined its ability to respond to the governmentsdispositive motion, it was incumbent upon it to make that argument to the districtcourt. It did not. See Plaintiffs Opposition To Defendants Motion To DismissFor Lack Of Subject Matter Jurisdiction (May 9, 2008).

That plaintiff made no sucl-i argument is unsurprising. The issue on whichthe court permitted discovery was, however characterized, the dispositive issuebefore the court. Pursuant to the courts discovery orders, OA turned over 1,300pages of docu men ts in response to plaintiff s requests for docum ent production.JA 327. Plaintiff also sought and obtained the deposition of OAs Director, Alan

R. Swendiman. See JA 138 (Discovery Order). In his deposition, Mr. Swendimantestified concerning OAs role and organization, the role and status of OAsDirector, and the relationship between OA and various entities within and outside


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EOP . See JA 277-30 6 (Sw endiman D eposition). M r. Sw endiman also noted that,as Director of the O ffice of Adm inistration, he held the title of Special A ssistant tothe President, and he reported to the P resident through the De puty A ssistant to thePresident for Management and Administration. See JA 278-79 (SwendimanDeposition).

In com plaining that Mr. Sw endiman did not fully answer every question toits satisfaction, plaintiff misses the more fundamental point that a judicial orderman dating the deposition of O As D irector does no t reflect an overly narrowdiscovery process. And, w hile plaintiff suggests that it should have been able todepose other OA personnel (App ellants B r. 36-37 ), its brief specifies noparticular official who m ight have been able to provide add itional, relevantinformation.4

M oreover, in conjunction w ith the requested jurisdictional discovery, thedistrict court also required OA to provide a declaration of its General Co unsel, M.Elizabeth Medaglia. See JA 17 5 (M edaglia Declaration). In her declaration, Ms.M edaglia explicitly addressed va rious legal questions pertaining to OA s position

4 In district court, plaintiff asked to de pose four particular OA emp loyees:OA s Director, Chief Operating Officer, Chief Information O fficer, and its priorFO IA officer. JA 13 8. OA s objections and the district courts discovery ordersexplained why d eposition of these multiple OA staff mem bers was not w arranted.See JA 119-23,138.33


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regarding its FOIA status over time. See JA 17 5-79 . That OA w as required toprovide a declaration of its General Counsel, over and ab ove the depo sition of itsDirector, further refutes plaintiffs contention that the discovery it obtained wasundu ly restrictive in scope.

The record sh ow s that plaintiff was able to obtain discovery relating to, interalia, OA s general procurement activities (see JA 296 ), its agreements w ith federalagencies for the provision of specific services (see JA 298 ), and the OA Directorsrequests to various agenc ies for non-reimb ursable details of qualified individuals(see JA 29 5). As the Governm ent urged in the district court,5 no discovery of anykind w as needed in order to resolve the question presented, whether OA is an"agency" w ithin the meaning of FO IA. See, e._g~ ., Sweetland, 60 F .3d at 853(affirming district court judgment, at m otion to dism iss stage, that ExecutiveResiden ce is not a FO IA agency "). The district court nevertheless affordedplaintiff ample discovery on the issue in question. Plaintiff waived its challenge to

5 See Defendants Memorandum In Support Of Its M otion For JudgmentOn Th e Pleadings (Aug. 21, 2007); Defendants M emorandum In Support Of ItsMo tion To Dismiss For Lack Of Sub ject Matter Jurisdiction, at 9 n .3 (Apr. 25,200 8) ("Although O A con tinues to believe under D.C. Circuit precedent that theissue of its agency status under FO IA can be d ecided on the pleadings alone,* * * O A will cite to factual evidence developed during discovery as furthersupport that OA is not a FO IA agency as a m atter of law.").34


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the scope of that discovery, and the discovery rulings would no t, in any even t,.constitute an abuse of discretion.

CONCLUSIONFor the foregoing reasons, the judgment o f the district court should be

affirmed.

SEPTEMBER 2008

Respectfully subm itted,GREGORY G. KATSASAssistant Attorney GeneralJEFFREY A. TAYLORUn ited States AttorneyMARK B . STERN(202)514-5089 ~THOM AS M . B ONDY(202)514-4825Attorneys, App ellate StaffCivil Division, Room 7535U.S. Departmen t of Justice950 Pennsylvania Ave., N.W .Washington, D.C. 20530

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CERTIFICATE OF COMPLIANCEI hereby certify that this brief is in com pliance with Ru le 32(a)(7 ) of the

Federal Rules of.Appellate Procedure. The brief contains 74 39 words, and w asprepared in 14-p oint Times N ew R oman font using Corel WordPerfect 12.0.



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CERTIFICATE OF SERVICEI hereby certify that on this 19th day of Septem ber, 2008, I served the

foregoing B rief for App ellee by causing one original and 15 copies to be deliveredby hand to the United States Cou rt of Appeals for the District of Columbia Circuit,and two copies to be delivered by first-class U.S. M ail, postage prepaid, to thefollowing counsel:

Anne L. WeismannM elanie T. SloanCitizens for Respon sibility andEthics in W ashington140 0 Eye Street, N.W., Suite 450W ashington, D.C. 2000 5Telephone: (202)40 8-5565


crew v. office of administration: regarding lost white house emails: 9/18/2008 - brief for appellee

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