                  United States Court of Appeals
               for the district of columbia circuit



Nos. 98-5048 & 98-5049                       September Term, 1999

American Association of Physicians and 
Surgeons, Inc., et al,                       No. 93cv00399       
                                                                 
                    Appellees                                    
                                                                 
          v.

Hillary Rodham Clinton, et al.,

                    Appellants
                                      
     Before: Ginsburg and Henderson, Circuit Judges, Buckley, Senior Circuit Judge.

                            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.

     Page 10, line 26 to page 11, line 12: Delete the following language:

                    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,
          see id. at 915--

     Page 11, line 12: Add the following language (before "the government 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

     Page 11, lines 18-19: Delete the following language:

                                                                      Not having previously raised the defense,         

     Page 11, line 19: Capitalize the "t" in "the"

     Page 11, line 19:  Add (after the word "duty") the following language:

          before then

     Page 14, lines 25-28: Delete the following language:

                    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