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[ORAL ARGUMENT NOT SCHEDULED]IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUITORLY TAITZ,Plaintiff - Appellant, v.KATHY RUEMMLER, in her capacity as the WhiteHouse Counsel,Defendant - Appellee. ) ) ) ) ) )No. 11-5306
) ) ) ) ) ) )
APPELLEE’S MOTION FOR SUMMARY AFFIRMANCE
Appellee respectfully moves for summary affirmance of the district court’sdecision dismissing plaintiff’s suit. Pro se plaintiff Orly Taitz brought this Freedom of Information Act (“FOIA”) action seeking documents plaintiff alleges are in thepossession of the White House Counsel’s Office. The district court properly dismissedthis suit because it is well-settled that the White House Counsel’s Office is not an agency subject to FOIA. Summary disposition is warranted.
STATEMENT
Plaintiff filed her complaint on August 4, 2011, seeking “two certified copies of the original long form birth certificate of Barack Obama” that plaintiff alleges arecurrently in the possession of the White House Counsel. D. Ct. Doc. No. 1, Compl. at
USCA Case #11-5306 Document #1354001 Filed: 01/23/2012 Page 1 of 8
7. Plaintiff alleges that she submitted a FOIA request to the White House Counsel’sOffice and received no response.
Id.
at 5, ¶¶ 8-11.On October 17, 2011, the district court granted the government’s motion todismiss. Following the longstanding precedent of the Supreme Court and this Court, thedistrict court held that the White House Counsel’s Office is not subject to FOIA. Op.1-2 (
citing Kissinger
v.
Reporters Comm. for Freedom of the Press
, 445 U.S. 136, 156 (1980);
Nat’l Security Archive
v.
Archivist of the United States
, 909 F.2d 541, 545 (D.C. Cir. 1990)).
ARGUMENT
No substantial question is presented by plaintiff’s appeal. It is well-settled that“FOIA applies only to an ‘agency,’”
Citizens for Responsibility and Ethics in Washington
v.
Office of Admin.
, 566 F.3d 219, 222 (D.C. Cir. 2009), and that “the President’s immediatepersonal staff or units in the Executive Office whose sole function is to advise and assistthe President are not included within the term ‘agency’ under the FOIA,”
Kissinger
v.
Reporters Comm. for Freedom of the Press
, 445 U.S. 136, 156 (1980) (internal quotationsomitted).
See also
5 U.S.C. § 552(f). This Court has squarely held that the White HouseCounsel’s Office is not an agency subject to FOIA.
See Nat’l Security Archive
v.
Archivist of the United States
, 909 F. 2d 541, 545 (D.C. Cir. 1990);
see also Judicial Watch, Inc.
v.
DOJ
,365 F.3d 1108, 1109 n.1 (D.C. Cir. 2004).2
USCA Case #11-5306 Document #1354001 Filed: 01/23/2012 Page 2 of 8
CONCLUSION
For the foregoing reasons, the judgment of the district court should be affirmed.Respectfully submitted,MARK B. STERN(202) 514-5089s/ Helen L. GilbertHELEN L. GILBERT(202) 514-4826
Attorneys, Appellate Staff Civil Division, Room 7228Department of Justice950 Pennsylvania Ave., NW Washington, DC 20530-0001 JANUARY 20123
USCA Case #11-5306 Document #1354001 Filed: 01/23/2012 Page 3 of 8
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