Court lifts cap on attorney’s fees due to government "dishonesty"

WASHINGTON, D.C.–In mid-December, federal District Court Judge Royce Lamberth lifted the cap on attorney’s fees charged to the federal government in an open meetings case, holding that the government acted “dishonestly” in trying to keep the proceedings secret.

The judge said that a sworn declaration of March 1993 by Ira Magaziner, senior advisor to President Clinton, that all members of a working group which reported to Hillary Clinton’s Health Care Task Force were federal “employees” was false.

Lamberth wrote that “such dishonesty is sanctionable and was not good faith dealing with the court or plaintiff’s counsel.”

He awarded $285,000 to the American Physicians and Surgeons, the lead plaintiff public interest group which in 1993 sued to make open to the public meetings of the task force and its 500-member working group.

The Federal Advisory Committee Act (FACA) requires that, when the government looks for advice from groups which include non-government members, those groups must generally meet openly and make their records available to the public. An affidavit by Magaziner early in the proceedings indicated erroneously that the working group could be considered to be comprised of federal employees. Most of the working group was not employed by the government.

Lamberth also sharply criticized Magaziner and administrative officials who counseled him for not correcting the affidavit in later court proceedings even though the government stopped arguing that FACA should not apply to the working group because it consisted only of “employees.”

Three physicians groups sued the Clinton administration in early 1993 to gain access under FACA first to the Health Care Task Force then to its working group.

The U.S. Court of Appeals in Washington, D.C. ruled in June 1993 that because Mrs. Clinton, the only member of the actual Task Force not employed by the federal government, was not a government “outsider,” the Task Force itself was not subject to FACA, although the 500-person working group might be.

Before the District Court ruled on whether FACA applied to the working group, the White House turned over most of its records in September 1994.

The Association of American Physicians and Surgeons is entitled to attorney’s fees and costs because it substantially prevailed in opening up the proceedings, Lamberth ruled. (Association of American Physicians and Surgeons v. Hillary Rodham Clinton; Counsel: Robert Gill, Washington, D.C.)