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Case TitleBrown et al v. Perez
DistrictDistrict of Colorado
CityDenver
Case Number1:2013cv01722
Date Filed2013-07-01
Date Closed2014-12-24
JudgeJudge Raymond P. Moore
PlaintiffBlake Brown
PlaintiffDean Biggs
PlaintiffJacqueline DeHerrera
PlaintiffRuth Ann Head
PlaintiffMarlene Mason
PlaintiffRoxanne S. McFall
PlaintiffRichard Medlock
PlaintiffBernadette Smith
DefendantUnited States Department of Labor an agency of the United States governing
DefendantOffice of Workers Compensation Programs an agency of the United States Department of Labor
DefendantThomas E. Perez Secretary of Labor
AppealTenth Circuit 15-1023
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [7]
Opinion/Order [21]
Opinion/Order [27]
Opinion/Order [56]
Opinion/Order [62]
Opinion/Order [74]
Opinion/Order [75]
Opinion/Order [76]
FOIA Project Annotation: A federal court in Colorado has ruled that information concerning the bypass procedure for randomly selecting qualifying physicians to conduct reviews of disputes of medical findings related to workers compensation benefits is protected by Exemption 4 (confidential business information) and Exemption 6 (invasion of privacy). The court also found that the Department of Labor's Office of Workers Compensation Programs was not required to produce screen shots of the bypass procedure because they did not exist. The bypass process relies on licensed software from Elsevier to randomly select physicians willing to review cases. If a physician's name is selected randomly and he or she is unable or unwilling to handle the review, the software automatically selects another physician randomly. Several claimants, believing the random process was faulty, requested records concerning the process. OWCP provided some records and redacted others and the claimants sued. The agency argued records about the process, as well as information about individual physicians, was protected by Exemption 4 because the software was proprietary. Reviewing the standards for assessing an Exemption 4 claim, Judge Raymond Moore seemed to be hesitant as to whether to apply the Critical Mass test or the National Parks test. The plaintiffs argued that the redacted names came from the OWCP software and had been obtained from a third party. But Moore agreed with the government's characterization that "through OWCP accesses the data using its own software, the data that Plaintiffs seek actually comes from a private business entity. . ." Moore noted that under Critical Mass, "the information sought by Plaintiffs, specifically, the names and identifiers for physicians in various contexts, would not customarily be released to the public by a private company, Elsevier. The value of a commercial database is inconsistent with the free and ready disclosure of its contents�"even if restricted to District 12" [which included Colorado]. As to the National Parks test, Moore pointed out that "disclosure would impair the government's ability to obtain necessary information in the future. It requires little deductive reasoning to reach the conclusion that companies in the business of licensing commercial data to the government would be less likely to do so if their confidential data could be accessed by anyone simply by making a FOIA request." The plaintiffs argued that physicians' names were publicly available on the OWCP website. But Moore explained that "the public nature of the names, addresses and phone numbers of physicians does not mean that the information is not confidential when it is given in the context of documents that reveal a physician's activities, referrals, clients, etc." Moore agreed with the agency that disclosure would not shed light on government activities or operations and indicated that "the physicians and private individuals appearing in case files have a clear privacy interest in their personal and business information." While it was unclear as to whether the agency did not have the ability to provide screenshots because the requested records no longer existed or because it did not do so as part of its routine operations, Moore found the agency "will not be required to create and then produce printouts of computer screenshots as requested by Plaintiffs."
Issues: Exemption 4 - Competitive harm, Exemption 6 - Invasion of privacy
Opinion/Order [106]
FOIA Project Annotation: A federal court in Colorado has ruled that Elsevier, Inc. may not intervene in a case involving whether software used by the Department of Labor to randomly assign second-opinion physicians to review workers' disability claims under the Federal Employees' Compensation Act is protected under Exemption 4 (confidential business information) because Elsevier failed to intervene until after the case was remanded to the district court from the Tenth Circuit. In response to requests from Blake Brown and other similarly situated plaintiffs, the agency claimed records concerning how the software randomly assigned physicians was protected by Exemption 4 and that personally-identifying information was also protected by Exemption 6 (invasion of privacy). The district court ruled in favor of the agency, but on appeal the Tenth Circuit found that the agency's only evidence that the software-generated lists were confidential was an unrelated letter from Elsevier addressing several FOIA requests for the entire database. The Tenth Circuit found the Elsevier letter was insufficient to meet its burden of proof. The Tenth Circuit also found that because the personally-identifying information was about the physicians' professional status it might not be protected under Exemption 6. As a result, the Tenth Circuit remanded the case back to the district court. At that time, Elsevier moved to intervene. Although Elsevier argued that the government could not adequately represent its interests and that intervening would not affect the current status of the case, the district court strongly disagreed, noting that Elsevier had an opportunity to intervene in the original district court proceeding as well as the Tenth Circuit, but had chosen not to do so. The court pointed out that if Elsevier was allowed to intervene at this time "a party could pick and choose when to intervene based upon the assumed ease of success. That cannot be the case. In addition, how can the Court take seriously Elsevier's assertions of great prejudice if it is not allowed to intervene when Elsevier itself chose not to intervene? As such, the Court disagrees with Elsevier's assertion that it 'reasonably' decided to hold its fire. There was nothing reasonable about Elsevier's decision; it was purely a tactical maneuver."
Issues: Litigation - Jurisdiction - Failure to State a Claim
Opinion/Order [160]
FOIA Project Annotation: Judge Raymond Moore of the U.S. District Court for the District of Colorado, after conducting a rare Exemption 4 trial has ruled that records containing the zip codes for board-certified physicians in Colorado used by the Department of Labor in assessing workers compensation claims are not protected by Exemption 4 (confidential business information) because Elsevier, the company from whom the agency obtained the information as part of a subscription database, failed to show that the information was not available to the public under the Critical Mass standard. However, Moore rejected the argument made by Blake Brown, the lead plaintiff for a group of individuals who had suffered on-the-job injuries while working for the federal government, that the information was in the public domain because even though such information might be available online or in published directories the plaintiffs had not shown that the information on these specific physicians was publicly available. In an attempt to find out more about how the agency decided which physicians to use, Brown and the other plaintiffs requested records showing the names and geographical locations of referee physicians in Colorado. The agency withheld much of the information under Exemption 4 and Exemption 6 (invasion of privacy). Moore originally ruled in favor of the agency on both claims, but on appeal the Tenth Circuit ruled that there were enough unanswered questions about whether the information was confidential that the district court should hold a trial. The agency claimed that the physician data was confidential because it came from Elsevier's proprietary database, which restricted subscribers from sharing information with non-subscribers. Joann Amore, the director of Elsevier's professional certification directory business, testified Elsevier's database included information on physicians who did not want their data shared with subscribers. Moore faulted the agency for waiting until the beginning of the trial to drop its Exemption 6 claims altogether, and, further, to agree to disclose to Brown and the other plaintiffs all of the data points it had previously claimed were protected. The agency argued that its willingness to disclose all the records made the case moot. Moore, however, drew a distinction, noting that Anderson v. Dept of Health and Human Services, 3 F.3d 1383 (10th Cir. 1993), made clear that "a FOIA case is moot when the government produces all requested documents. Anderson does not say that a FOIA case is moot when the government decides to throw in the towel but not produce documents. Obviously, ordinarily the two go hand-in-hand â€" the government drops its arguments and produces documents at the same time. Unfortunately for defendants, this is the odd case in which the two are not hand-in-hand." As a result, Moore decided the case was not moot and proceeded to address the Exemption 4 claims. Moore surprised the government by announcing that the National Parks test, which analyzes whether or not disclosure will cause substantial competitive harm to the submitter and applies when information is submitted because it is required, did not apply in these circumstances because the information in Elsevier's database had been supplied to the government voluntarily under a subscription agreement. Instead, Moore explained that the Critical Mass standard -- adopted only by the D.C. Circuit and the Ninth Circuit but referenced by the Tenth Circuit in its decision in this caseâ€"was a more logical way to analyze the issue of confidentiality. Under Critical Mass, information provided voluntarily is confidential "if it is of a kind that would customarily not be released to the public by the person from whom it was obtained." Although the agency had relied solely on National Parks, arguing that Elsevier had provided its information under a contractual agreement restricting disclosure, Moore found the principles underlying the Critical Mass test much more applicable here. Moore emphasized that the basis for the Critical Mass standard "is that of encouraging cooperation with the Government by persons having information useful to officials." However, the agency argued that it needed "continued reliability" of data, while Moore pointed out that the value of Elsevier's database services was its "continued availability," which would not be impaired by whether or not the information was publicly available. Moore indicated that "defendants purchase information from Elsevier. The licensing agreement provides that Elsevier is granting defendant a license to use the Database. The licensing agreement does not provide that the license is being granted because defendants or the law require it, but, instead, because defendants are paying for it. In no reasonable sense can purchasing the Database from Elsevier or Elsevier granting defendants the right to use it be considered Elsevier involuntarily turning the Database over to defendants." One of the rationales for the bifurcated voluntary/involuntary distinction in Critical Mass was to make it easier to withhold information that was not required to be submitted. Soon after the Critical Mass decision, the Justice Department took the position that the majority of information provided to obtain a government contract was required and should be considered submitted involuntarily. Nevertheless, the government still receives a considerable amount of information submitted voluntarily which could qualify under the more lenient Critical Mass standard defaulting to the submitter's customary practice of confidentiality as the measure for non-disclosure. But here, Moore concluded that Elsevier's printed and online directory sales to public libraries indicated that Elsevier was not concerned with keeping such information confidential. Moore recognized that licensing to institutions like hospitals qualified as limited protected disclosures that could not be considered public disclosures. However, Moore pointed out that Elsevier licensed online directories to public libraries with the only restriction on access being that an individual was a patron of the library. He explained that "whatever restrictions there may be would seem insufficient to consider information available in a public library as not having been released to the general public." He added that "the fact of the matter is, though, that defendants did not argue that information available in a public library should not be considered a release to the general public." Based on Amore's testimony that Elsevier sold its products to public libraries, Moore observed that "as far as the Court is concerned, those are customs." Moore turned to a determination of when information customarily disclosed by companies qualified as "of a kind" for purposes of the Critical Mass standard. Relying on Center for Auto Safety v. NHTSA, 244 F.3d 144 (D.C. Cir. 2001), the only D.C. Circuit case discussing the meaning of terms like "customary" and "of a kind" in the context of the Critical Mass standard, Moore found that "the information available to the general public, particularly in Elsevier's printed books, is evidence of the customary release of the [name and geographical location] information licensed to defendants because the latter is 'of a kind' with the former. For sure, the information available in Elsevier's printed books is not in every sense identical to the information licensed to defendants. . .The information, though, does not need to be identical." He added that "merely because Elsevier's printed books may have contained information on less doctors, does not mean that the type of information provided as to those doctors was different to the type of information provided to defendants." Moore observed that "ultimately, Critical Mass asks whether the information provided to the government is 'of a kind' with information that would customarily not be released. Here, the Court concludes that the answer to that question is 'no' because the information Elsevier licensed to the government is 'of a kind' with information that Elsevier has released to the general public." Moore dismissed Brown's public domain argument, finding that D.C. Circuit case law on official acknowledgement required the plaintiffs to show the information in the public domain was identical to that being withheld by the agency.
Issues: Exemption 4 - Voluntary submission
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2013-07-011COMPLAINT against Seth D Harris (Filing fee $ 400, Receipt Number 1082-3429094), filed by Roxanne S. McFall, Jacqueline DeHerrera, Richard Medlock, Dean Biggs, Bernadette Smith, Blake Brown, Ruth Ann Head, Marlene Mason. (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(Evangelisti, John) (Entered: 07/01/2013)
2013-07-012Case assigned to Judge Wiley Y. Daniel and drawn to Magistrate Judge Michael J. Watanabe. Text Only Entry (sphil, ) (Entered: 07/01/2013)
2013-07-013SUMMONS issued by Clerk. Magistrate Judge Consent Form attached. (Attachments: # 1 Magistrate Judge Consent Form) (sphil, ) (Entered: 07/01/2013)
2013-07-034MEMORANDUM RETURNING CASE by Senior Judge Daniel. (jjhsl, ) (Entered: 07/03/2013)
2013-07-035CASE REASSIGNED pursuant to 4 Memorandum Returning Case. This case is reassigned to Judge Raymond P. Moore. All future pleadings should be designated as 13-cv-01722-RM-MJW. Text Only Entry (jjhsl, ) (Entered: 07/03/2013)
2013-07-086ORDER REFERRING CASE to Magistrate Judge Michael J. Watanabe. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to the assigned United States Magistrate Judge to (1) convene a scheduling conference under Fed. R. Civ. P. 16(b) and enter a scheduling order meeting the requirements of D.C.COLO.LCivR 16.2, (2) conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause, (3) hear and determine pretrial matters, including discovery and other non-dispositive motions, and (4) conduct a pretrial conference and enter a pretrial order. Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the magistrate judge or on the request of the parties by motion, this court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. Entered by Judge Raymond P. Moore on 7/8/2013. (Text Only Entry) (rmsec ) (Entered: 07/08/2013)
2013-07-097ORDER Scheduling Conference set for 9/10/2013 10:30 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe, by Magistrate Judge Michael J. Watanabe on 7/9/2013. (mjwcd) (Entered: 07/09/2013)
2013-08-078SUMMONS Returned Executed upon defendant(s) Seth D. Harris served on 7/19/2013, answer due 9/17/2013. (Attachments: # 1 Exhibit Ex. 1 Service Verification U.S. Attorney Colo., # 2 Exhibit Ex. 2 Service Verification Acting Secy. Labor, # 3 Exhibit Ex. 3 Service Verification U.S. Attorney General)(Larson, Karen) (Entered: 08/07/2013)
2013-09-039Proposed Scheduling Order by Defendants Seth D. Harris, Office of Workers Compensation Programs, United States Department of Labor. (Pharo, William) (Entered: 09/03/2013)
2013-09-0310Proposed Scheduling Order by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Larson, Karen) (Entered: 09/03/2013)
2013-09-0911Proposed Scheduling Order Amended by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Larson, Karen) (Entered: 09/09/2013)
2013-09-1012COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Michael J. Watanabe: Scheduling Conference held on 9/10/2013. Discovery due by 12/31/2013. Dispositive Motions due by 1/31/2014. Final Pretrial Conference set for 3/21/2014 09:00 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Court Reporter: FTR - Ellen E. Miller. FTR: Courtroom A502. (mjwcd) (Entered: 09/10/2013)
2013-09-1013SCHEDULING ORDER: Entered by Magistrate Judge Michael J. Watanabe on 9/10/2013. (mjwcd) (Entered: 09/10/2013)
2013-09-1314ANSWER to 1 Complaint, by Seth D. Harris, Office of Workers Compensation Programs, United States Department of Labor.(Pharo, William) (Entered: 09/13/2013)
2013-09-2415OBJECTION/Appeal of Magistrate Judge Decision to District Court re 13 Scheduling Order Permitting Discovery by Defendant United States Department of Labor. (Pharo, William) (Entered: 09/24/2013)
2013-09-2516MEMORANDUM regarding 15 OBJECTION/Appeal of Magistrate Judge Decision to District Court re 13 Scheduling Order Permitting Discovery by Defendant United States Department of Labor. filed by United States Department of Labor. Motion referred to Magistrate Judge Michael J. Watanabe. Entered by Judge Raymond P. Moore on 9/25/2013. (Text Only Entry) (rmsec ) (Entered: 09/25/2013)
2013-10-1517RESPONSE to 15 Objection/Appeal of Magistrate Judge Decision Permitting Discovery filed by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Evangelisti, John) (Entered: 10/15/2013)
2013-10-1518Exhibits in Support of 17 Response to Objection/Appeal of Magistrate Judge Decision, Permitting Discovery by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Exhibit 1)(Evangelisti, John) (Entered: 10/15/2013)
2013-10-2519First MOTION for Order to Amend Complaint to Substitute Name of Defendant by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Evangelisti, John) (Entered: 10/25/2013)
2013-10-2520MEMORANDUM regarding 19 First MOTION for Order to Amend Complaint to Substitute Name of Defendant filed by Roxanne S. McFall, Dean Biggs, Blake Brown, Ruth Ann Head, Bernadette Smith, Jacqueline DeHerrera, Marlene Mason, Richard Medlock. Motion referred to Magistrate Judge Michael J. Watanabe. Entered by Judge Raymond P. Moore on 10/25/2013. (Text Only Entry) (rmsec ) (Entered: 10/25/2013)
2013-10-2821MINUTE ORDER granting 19 Motion to amend complaint to substitute name of defendant, by Magistrate Judge Michael J. Watanabe on 10/28/2013.(trlee, ) (Entered: 10/28/2013)
2013-11-1522NOTICE of Entry of Appearance by Timothy Bart Jafek on behalf of Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor (Jafek, Timothy) (Entered: 11/15/2013)
2013-11-1523MOTION for Protective Order by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Attachments: # 1 Exhibit A)(Pharo, William) (Entered: 11/15/2013)
2013-11-1524MEMORANDUM regarding 23 MOTION for Protective Order filed by Thomas E. Perez, United States Department of Labor, Office of Workers Compensation Programs. Motion referred to Magistrate Judge Michael J. Watanabe. Entered by Judge Raymond P. Moore on 11/15/2013. (Text Only Entry) (rmsec ) (Entered: 11/15/2013)
2013-11-1825SUPPLEMENT/AMENDMENT to 23 MOTION for Protective Order by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Attachments: # 1 Exhibit A)(Jafek, Timothy) (Entered: 11/18/2013)
2013-12-2426RESPONSE to 23 MOTION for Protective Order filed by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Evangelisti, John) (Entered: 12/24/2013)
2013-12-3027MINUTE ORDER : Defendants' Motion for Protective Order 23 and Defendants' Amended Motion for Protective Order 25 are BOTH DENIED because the relief sought is already before Judge Moore in the Defendants' Objection to Magistrate Judges Order Permitting Discovery 15 . by Magistrate Judge Michael J. Watanabe on 12/30/2013. (trlee, ) (Entered: 12/30/2013)
2014-01-0728Unopposed MOTION to Withdraw as Attorney by Defendant United States Department of Labor. (Attachments: # 1 Proposed Order (PDF Only))(Jafek, Timothy) (Entered: 01/07/2014)
2014-01-0729MEMORANDUM regarding 28 Unopposed MOTION to Withdraw as Attorney filed by United States Department of Labor. Motion referred to Magistrate Judge Michael J. Watanabe. Entered by Judge Raymond P. Moore on 1/7/2014. (Text Only Entry) (rmsec ) (Entered: 01/07/2014)
2014-01-0730MINUTE ORDER granting 28 Motion to Withdraw as Attorney. Attorney William George Pharo terminated. by Magistrate Judge Michael J. Watanabe on 1/7/2014.(trlee, ) (Entered: 01/07/2014)
2014-01-1331Unopposed MOTION for Leave to File Excess Pages by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Proposed Order (PDF Only) for Judge Moore, # 2 Proposed Order (PDF Only) for Magistrate Judge Watanabe)(Larson, Karen) (Entered: 01/13/2014)
2014-01-1332ORDER granting 31 Motion for Leave to File Excess Pages. Plaintiff is allowed 30 pages for their Motion for Summary Judgment. SO ORDERED by Judge Raymond P. Moore on 1/13/2014. (Text Only Entry)(rmsec ) (Entered: 01/13/2014)
2014-01-2133Unopposed MOTION for Extension of Time to File Dispositive Motions by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Attachments: # 1 Proposed Order (PDF Only))(Jafek, Timothy) (Entered: 01/21/2014)
2014-01-2134MEMORANDUM regarding 33 Unopposed MOTION for Extension of Time to File Dispositive Motions filed by Thomas E. Perez, United States Department of Labor, Office of Workers Compensation Programs. Motion referred to Magistrate Judge Michael J. Watanabe. Entered by Judge Raymond P. Moore on 1/21/2014. (Text Only Entry) (rmsec ) (Entered: 01/21/2014)
2014-01-2235MINUTE ORDER granting 33 Unopposed Motion for Extension of Time to File Dispositive Motions. Scheduling Order 13 is amended. Dispositive Motions due by 2/21/2014. By Magistrate Judge Michael J. Watanabe on 1/22/2014.(mjwcd) (Entered: 01/22/2014)
2014-01-2736MINUTE ORDER Due to a conflict on the court's docket, Final Pretrial Conference 3/21/2014 09:00 AM is vacated. Proposed Pretrial Order due by 4/1/2014. Final Pretrial Conference reset for 4/7/2014 01:30 PM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. By Magistrate Judge Michael J. Watanabe on 1/27/2014. (mjwcd) (Entered: 01/27/2014)
2014-02-1837Joint MOTION for Extension of Time to File Dispositive Motions by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Larson, Karen) (Entered: 02/18/2014)
2014-02-1938MEMORANDUM regarding 37 Joint MOTION for Extension of Time to File Dispositive Motions filed by Roxanne S. McFall, Dean Biggs, Blake Brown, Ruth Ann Head, Bernadette Smith, Jacqueline DeHerrera, Marlene Mason, Richard Medlock. Motion referred to Magistrate Judge Michael J. Watanabe. Entered by Judge Raymond P. Moore on 2/19/2014. (Text Only Entry) (rmsec ) (Entered: 02/19/2014)
2014-02-1939MINUTE ORDER granting 37 Joint Motion for Extension of Three Business Days to File Dispositive Motions. Dispositive Motions due by 2/26/2014, by Magistrate Judge Michael J. Watanabe on 2/19/2014.(evana, ) (Entered: 02/19/2014)
2014-02-2640STIPULATION of Facts by All Parties by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Jafek, Timothy) (Entered: 02/26/2014)
2014-02-2641MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 1 12/2/10 FOIA, # 2 Exhibit Ex. 2 9/19/11 OWCP Resp. 12/2/10 FOIA, # 3 Exhibit Ex. 3 11/7/11 Appeal 9/19/11 Decision, # 4 Exhibit Ex. 4 CO Zip Code List, # 5 Exhibit Ex. 5 12/30/10 FOIA)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2642Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 7 10/26/11 Appeal 7/29/11 Resp., # 2 Exhibit Ex. 8 5/16/11 FOIA, # 3 Exhibit Ex. 9 8/22/11 OWCP Resp. 5/16/11 FOIA, # 4 Exhibit Ex. 10 Appeal 8/22/11 Resp., # 5 Exhibit Ex. 11 9/7/10 OWCP Resp. 8/10/10 FOIA, # 6 Exhibit Ex. 12 12/10/10 FOIA Req., # 7 Exhibit Ex. 13 8/18/11 OWCP Resp. 12/10/10 and 5/11/11 FOIAs, # 8 Exhibit Ex. 14 11/18/11 Appeal 8/18/11 Resp. 12/10/10 FOIA, # 9 Exhibit Ex. 15 2/28/11 FOIA Req.)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2643Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 17 10/26/11 Appeal OWCP Resp. 7/29/11, # 2 Exhibit Ex. 18 OWCP Resp. Appeal, # 3 Exhibit Ex. 19 4/26/11 FOIA Req., # 4 Exhibit Ex. 20 8/16/11 OWCP Resp. 4/26/11 FOIA, # 5 Exhibit Ex. 21 11/18/11 Appeal OWCP Resp., # 6 Exhibit Ex. 22 12/10/10 OWCP Resp. 10/5/10 FOIA)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2644Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 24 12/30/10 FOIA Req., # 2 Exhibit Ex. 25 8/16/11 OWCP Resp. 12/30/10 FOIA, # 3 Exhibit Ex. 2611/18/11 Appeal 8/16/11 Resp. 12/30/10 FOIA, # 4 Exhibit Ex. 27 12/4/09 OWCP Resp. 9/25/09 FOIA, # 5 Exhibit Ex. 28 12/24/09 FOIA Appeal 12/4/09 Resp., # 6 Exhibit Ex. 29 12/2/10 FOIA Req.)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2645Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 24 12/30/10 FOIA Req., # 2 Exhibit Ex. 25 8/16/11 OWCP Resp. 12/30/10 FOIA, # 3 Exhibit Ex. 26 11/18/11 Appeal 8/16/11 Resp. 12/30/10 FOIA, # 4 Exhibit Ex. 27 12/4/09 OWCP Resp. 9/25/09 FOIA, # 5 Exhibit Ex. 28 12/24/09 FOIA Appeal 12/4/09 Resp., # 6 Exhibit Ex. 2912/2/10 FOIA Req.)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2646Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 31 9/18/11 Appeal OWCP 8/12/11 Resp., # 2 Exhibit Ex. 32 11/20/10 OWCP ltr., # 3 Exhibit Ex. 33 11/10/10 OWCP ltr., # 4 Exhibit Ex. 34 6/4/10 OWCP ltr., # 5 Exhibit Ex. 35 5/24/05 OWCP ltr., # 6 Exhibit Ex. 36 12/22/08 OWCP ltr., # 7 Exhibit Ex. 37 Sabin ACS printout, # 8 Exhibit Ex. 38 9/22/10 OWCP ltr., # 9 Exhibit Ex. 39 Sabin ACS printout)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2647Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 41 8/5/11 OWCP Resp. 12/30/10 FOIA, # 2 Exhibit Ex. 42 FECA Bulletin No. 01-11)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2648Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 44 FECA PM 3-0500-4(3/94, 3/95), # 2 Exhibit Ex. 45 3/20/07 OWCP ltr., # 3 Exhibit Ex. 46 9/6/94 ltr., # 4 Exhibit Ex. 47 4/6/06 OWCP ltr., # 5 Exhibit Ex. 48 11/20/09 OWCP ltr., # 6 Exhibit Ex. 49 12/31/03 Notice of Referee)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2649Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 51 12/14/10 Notice of Referee, # 2 Exhibit Ex. 52 12/30/10 Referee Obj., # 3 Exhibit Ex. 53 11/14/11 Notice of Referee, # 4 Exhibit Ex. 54 12/7/11 Referee Obj., # 5 Exhibit Ex. 55 7/29/10 Notice of Referee)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2650Exhibits in Support of 41 MOTION for Summary Judgment and Supporting Brief by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 57 ABMS CO Orthopaedic Surgeons total, # 2 Exhibit Ex. 58 6/28/07 Notice of Referee, # 3 Exhibit Ex. 59 1/13/14 FOIA Req., # 4 Exhibit Ex. 60 1/13/14 FOIA Req., # 5 Exhibit Ex. 61 1/13/14 FOIA Req., # 6 Exhibit Ex. 62 2/13/14 ltr. to OC)(Evangelisti, John) (Entered: 02/26/2014)
2014-02-2651NOTICE of brief with corrected citations to stipulations by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith (Larson, Karen) (Entered: 02/26/2014)
2014-02-2652MOTION for Summary Judgment by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Attachments: # 1 Tritz Decl. with Exhibits, # 2 Mitten Decl. with Exhibits B-1 to B-5, # 3 Mitten Decl. Exhibits B-6 to B-12, # 4 MItten Decl. Exhibits B-13 to B-19)(Jafek, Timothy) (Entered: 02/26/2014)
2014-03-1953RESPONSE to 52 MOTION for Summary Judgment filed by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 63 ABMS Directory Guided Tour, # 2 Exhibit Ex. 64 Certification Matters, # 3 Exhibit Ex. 65 6/13/12 FOIA, # 4 Exhibit Ex. 66 3/6/14 email to OC, # 5 Exhibit Ex. 67 5/9/11 PAR Response, # 6 Exhibit Ex. 68 DORA Roster, # 7 Exhibit Ex. 69 DOL ABMS License 2006, # 8 Exhibit Ex. 70 FOIA Regulations)(Evangelisti, John) (Entered: 03/19/2014)
2014-03-2454MOTION to Vacate 36 Minute Order, by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Jafek, Timothy) (Entered: 03/24/2014)
2014-03-2455MEMORANDUM regarding 54 MOTION to Vacate 36 Minute Order, filed by Thomas E. Perez, United States Department of Labor, Office of Workers Compensation Programs. Motion referred to Magistrate Judge Michael J. Watanabe. Entered by Judge Raymond P. Moore on 3/24/2014. (Text Only Entry) (rmsec ) (Entered: 03/24/2014)
2014-03-2456MINUTE ORDER denying 54 Motion to Vacate. The Final Pretrial Conference set for April 7, 2014 at 1:30 p.m. will go forward as scheduled. By Magistrate Judge Michael J. Watanabe on 3/24/2014.(trlee, ) (Entered: 03/24/2014)
2014-03-2457RESPONSE to 41 MOTION for Summary Judgment and Supporting Brief filed by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Jafek, Timothy) (Entered: 03/24/2014)
2014-04-0158Proposed Pretrial Order Final by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Plaintiffs' Exhibit List, # 2 Defendants' Exhibit List)(Larson, Karen) (Entered: 04/01/2014)
2014-04-0359NOTICE re 40 Stipulation Notice of Withdrawal of Stipulation Regarding Authenticity of Plaintiffs' Exhibit 4 by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor (Jafek, Timothy) (Entered: 04/03/2014)
2014-04-0760COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Michael J. Watanabe: Final Pretrial Conference held on 4/7/2014. Final Pretrial Order entered. Court Reporter: FTR - Ellen E. Miller. FTR: Courtroom A502. (emill) (Entered: 04/07/2014)
2014-04-0761FINAL PRETRIAL ORDER Entered by Magistrate Judge Michael J. Watanabe on 4/7/2014. (Attachments: # 1 Plaintiff Exhibit List, # 2 Defendant Exhibit List) (emill) (Entered: 04/07/2014)
2014-04-0762ORDER setting case for trial: Trial Preparation Conference set for 9/3/2014 at 01:30 PM in Courtroom A 601 before Judge Raymond P. Moore. A two day Bench Trial is set to commence 10/1/2014, 9:00 AM in Courtroom A 601 before Judge Raymond P. Moore. By Judge Raymond P. Moore on 4/7/2014. (trlee, ) (Entered: 04/07/2014)
2014-04-0763REPLY to Response to 52 MOTION for Summary Judgment filed by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Jafek, Timothy) (Entered: 04/07/2014)
2014-04-0964REPLY to Response to 41 MOTION for Summary Judgment and Supporting Brief filed by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Attachments: # 1 Exhibit Ex. 71 ltr. w. Claim No., # 2 Exhibit Ex. 72 ltr. w. Claim No., # 3 Exhibit Ex. 3 Aff. of Counsel, # 4 Exhibit Ex. 4 Aff. of Counsel Para.)(Evangelisti, John) (Entered: 04/09/2014)
2014-08-1265NOTICE of Change of Address/Contact Information by Karen Virginia Larson (Larson, Karen) (Entered: 08/12/2014)
2014-08-1566MOTION for Order to Take Judicial Notice by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Larson, Karen) (Entered: 08/15/2014)
2014-08-1567NOTICE OF CASE ASSOCIATION by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith (Larson, Karen) (Entered: 08/15/2014)
2014-08-2768Exhibit List by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Larson, Karen) (Entered: 08/27/2014)
2014-08-2769Witness List by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Larson, Karen) (Entered: 08/27/2014)
2014-08-2770Exhibit List by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Jafek, Timothy) (Entered: 08/27/2014)
2014-08-2771Witness List by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Jafek, Timothy) (Entered: 08/27/2014)
2014-08-2972Proposed Findings of Fact Conclusions of Law and Order by Plaintiffs Dean Biggs, Blake Brown, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith. (Larson, Karen) (Entered: 08/29/2014)
2014-08-2973Proposed Findings of Fact and Conclusions of Law by Defendants Office of Workers Compensation Programs, Thomas E. Perez, United States Department of Labor. (Jafek, Timothy) (Entered: 08/29/2014)
2014-09-0374COURTROOM MINUTES for proceedings held before Judge Raymond P. Moore: Trial Preparation Conference held on 9/3/2014. 66 Plaintiff's Request for the Court to Take Judicial Notice is DENIED. Hearing on the Motions for Summary Judgment, Docket Entries 41 and 52 , is set for 9/9/2014 at 2:00 PM in Courtroom A 601 before Judge Raymond P. Moore. Court Reporter: Tammy Hoffschildt. (cpear) Modified on 9/4/2014 to correct text (cpear). (Entered: 09/04/2014)
2014-09-0975COURTROOM MINUTES for proceedings held before Judge Raymond P. Moore: Motion Hearing held on 9/9/2014, taking under advisement 41 Plaintiffs' Motion for Summary Judgment and 52 Defendants' Motion for Summary Judgment. Bench Trial set for 10/1/2014 and 10/2/2014 is vacated. Court Reporter: Tammy Hoffschildt. (cpear) (Entered: 09/09/2014)
2014-12-2376ORDER RE: MOTIONS FOR SUMMARY JUDGMENT. Defendants' 52 Motion for Summary Judgment is GRANTED. Plaintiffs' 41 Motion for Summary Judgment is DENIED. All other pending motions (such as the Objection to Magistrate Judge's Order Pending Discovery, ECF No. 15 ) are hereby DENIED as MOOT. All issues before the Court are now resolved and the Clerk of Court is directed to close this case. By Judge Raymond P. Moore on 12/23/2014. (alowe) (Entered: 12/23/2014)
2014-12-2477JUDGMENT in favor of Defendants Office of Workers Compensation Programs, United States Department of Labor, and Thomas E. Perez and against Plaintiffs Bernadette Smith, Blake Brown, Dean Biggs, Jacqueline DeHerrera, Marlene Mason, Richard Medlock, Roxanne S. McFall, and Ruth Ann Head. By Judge Raymond P. Moore on 12/24/2014. (cpear) (Entered: 12/24/2014)
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