USCA Case #11-5306

Document #1354001

Filed: 01/23/2012

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[ORAL ARGUMENT NOT SCHEDULED] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ) ) ) ) ) )

ORLY TAITZ, Plaintiff - Appellant, v.

No. 11-5306

) KATHY RUEMMLER, in her capacity as the White ) ) House Counsel, ) ) Defendant - Appellee. ) )

APPELLEE’S MOTION FOR SUMMARY AFFIRMANCE Appellee respectfully moves for summary affirmance of the district court’s decision dismissing plaintiff’s suit. Pro se plaintiff Orly Taitz brought this Freedom of Information Act (“FOIA”) action seeking documents plaintiff alleges are in the possession of the White House Counsel’s Office. The district court properly dismissed this 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 are currently 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

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7. Plaintiff alleges that she submitted a FOIA request to the White House Counsel’s Office and received no response. Id. at 5, ¶¶ 8-11. On October 17, 2011, the district court granted the government’s motion to dismiss. Following the longstanding precedent of the Supreme Court and this Court, the district 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 immediate personal staff or units in the Executive Office whose sole function is to advise and assist the 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 quotations omitted). See also 5 U.S.C. § 552(f). This Court has squarely held that the White House Counsel’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).

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USCA Case #11-5306

Document #1354001

Filed: 01/23/2012

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CONCLUSION For the foregoing reasons, the judgment of the district court should be affirmed. Respectfully submitted, MARK B. STERN (202) 514-5089 s/ Helen L. Gilbert HELEN L. GILBERT (202) 514-4826 Attorneys, Appellate Staff Civil Division, Room 7228 Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001

JANUARY 2012

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USCA Case #11-5306

Document #1354001

Filed: 01/23/2012

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CERTIFICATE OF SERVICE I hereby certify that on January 23, 2012, I filed an electronic copy of the foregoing motion with the United States Court of Appeals for the D.C. Circuit through the CM/ECF system. Service was accomplished on the following by First Class U.S. mail: Orly Taitz 29839 Santa Margarita Parkway Suite 100 Rancho Santa Margarita, CA 92688

s/ Helen L. Gilbert HELEN L. GILBERT Counsel for Defendant-Appellee

USCA Case #11-5306

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Filed: 01/23/2012

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Exhibit A: District Court Opinion Taitz v. Ruemmler, No. 11-1421 (D.D.C. October 17, 2011) (Lamberth, C.J.)

Case 1:11-cv-01421-RCL Document 6 Filed 10/17/11 Page 1 of 3 USCA Case #11-5306 Document #1354001 Filed: 01/23/2012 Page 6 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ORLY TAITZ, ) ) Plaintiff, ) ) v. ) ) Civil Action No. 11-1421 (RCL) KATHY RUEMMLER, ) WHITE HOUSE COUNSEL, ) ) Defendant. ) ____________________________________) MEMORANDUM AND ORDER Before the Court is defendant’s motion to dismiss [4]. Upon consideration of defendant’s motion, plaintiff’s opposition [5], the entire record herein, and the applicable law, the Court will grant the motion. As part of her Sisyphean quest to prove that President Barack Obama is using a fake Social Security number and a forged birth certificate, plaintiff filed the instant Complaint [1]. Plaintiff seeks access under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the two certified copies of the original long form birth certificate of Barack Obama 1 currently in possession of the defendant, White House Counsel Kathy Ruemmler. The defendant filed the instant motion to dismiss, arguing that FOIA does not apply to the White House Counsel’s office. This Court agrees. The Act only applies to agencies, and while the textual definition of “agency” contained in 5 U.S.C. § 552(f) is seemingly broad enough to cover any Executive agency, the Supreme Court has long held that the President’s personal staff and advisors are not “agencies” subject to FOIA requests. Kissinger v. Reporters Comm. for Freedom of the Press,
The President released his long-form birth certificate on April 27, 2011, and posted a copy on the White House Web site. The certificate confirms the President’s birth in Honolulu, Hawaii. See Michael D. Shear, “With Document, Obama Seeks to End ‘Birther’ Issue,” The New York Times, Apr. 28, 2011, at A1.
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Case 1:11-cv-01421-RCL Document 6 Filed 10/17/11 Page 2 of 3 USCA Case #11-5306 Document #1354001 Filed: 01/23/2012 Page 7 of 8

445 U.S. 136, 156 (1980). So long as the entities or advisors in question “wield[] substantial authority independently of the President,” they are not subject to FOIA. Citizens for

Responsibility and Ethics in Washington v. Office of Admin., 566 F.3d 219, 222 (D.C. Cir. 2009) (quotation marks omitted). The White House Counsel’s Office is one such office that is not subject to FOIA, because the Office’s sole responsibility is to render legal advice to the President. See Nat’l Security Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C. Cir. 1990). Indeed, this Court as recently as last year noted that “the White House Counsel’s Office [has] been excluded from FOIA’s definition of agency . . . .” Alexander v. FBI, 691 F. Supp. 2d 182, 189 (D.D.C. 2010). Plaintiff thus cannot seek relief against the defendant under FOIA. Plaintiff argues that because the defendant’s predecessor participated in a press conference during which he, Director of Communications Dan Pfeiffer, and Press Secretary Jay Carney announced the release of the birth certificate and Mr. Pfeiffer’s intent to safeguard the certificate for the President, the defendant’s predecessor exerted sufficient independent authority from the President to warrant agency treatment under FOIA. Citizens for Responsibility and Ethics in Washington, 566 F.3d at 222. But plaintiff provides no indication that the defendant’s predecessor and other participants in the press conference acted without the President’s direction. There is no reason to believe that the Office of the White House Counsel’s involvement in the release and continued retention of the birth certificate is independent in any sense or outside the traditional auspices of the office. Plaintiff’s entire argument for application of FOIA to this case is simply a restatement of her conclusory allegations that the President and his Administration are committing a fraud. Such threadbare assertions are irrelevant to the status of the White House Counsel’s Office as an entity exempt from FOIA. It is therefore hereby

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ORDERED that defendant’s motion to dismiss is GRANTED, and plaintiff’s suit is dismissed with prejudice. SO ORDERED. Signed by Royce C. Lamberth, Chief Judge, on October 17, 2011.

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