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Case TitlePROTECT DEMOCRACY PROJECT, INC. v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv00792
Date Filed2017-04-28
Date ClosedOpen
JudgeJudge Randolph D. Moss
PlaintiffPROTECT DEMOCRACY PROJECT, INC.
Case DescriptionThe Protect Democracy Project submitted a FOIA request to the Department of Health and Human Services for records concerning communications between the agency and the Centers for Medicare and Medicaid Services pertaining to the decision to discontinue the healthcare.gov website or enrollment in healthcare coverage. The Protect Democracy Project also requested a fee waiver. The agency acknowledged receipt of the request. As a result of a query pertaining to the status of the request, the organization was told that it had not yet been assigned for search purposes. The Protect Democracy Project then filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Public Interest Fee Waiver, Litigation - Attorney's fees

DefendantU.S. DEPARTMENT OF HEALTH & HUMAN SERVICES
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [29]
FOIA Project Annotation: Judge Rudolph Moss has ruled that the Department of Health and Human Services has justified its attorney-client privilege claims under Exemption 5 (privileges) but has not yet sufficiently supported its deliberative process privilege claims. The Protect Democracy Project submitted a FOIA request for records concerning the agency's decision to discontinue advertising for healthcare.gov during the final weeks of the 2016-17 enrollment period. The agency located 274 responsive pages " 33 pages from the Office of the Secretary and 241 pages from the Centers for Medicare and Medicaid Services " and disclosed them with redactions made under Exemption 5. PDP argued that the agency's deliberative process privilege claims were far too broad. Moss agreed and ordered the agency to supplement its Vaughn indices. He pointed out that the Vaughn indices were "devoid of any detail about the nature of relevant declarations." PDP contended that the agency's deliberative process privilege claims were generic at best. The agency claimed there was nothing wrong with such general descriptions, but Moss observed that "what is insufficient, however, is boilerplate language that might be used in any Vaughn index in any FOIA case. Because such boilerplate descriptions are unmoored from the specific rationale for, or the content of, the relevant redactions, they fail to provide the Court with 'a reasonable basis to evaluate the claim of privilege.' In other words, the problem is not that each Vaughn entry is identical; the problem is that the entries lack sufficient detail." He pointed out that "the Department fails to make an adequate showing regarding the function and significance of the withheld material to any agency deliberations." Moss faulted the agency's failure to provide sufficient identifying information about the role of the participants. He noted that "the Department never explains who these individuals are, nor, more importantly, what role they played in the relevant discussions." Moss found the agency fared far better with its attorney-client privilege claims. Here, Moss observed that "the Department has carried its burden on showing that the communications were between a law office " the Office of the General Counsel " and a client " CMS (or was passed along to other agency officials); that those communications were 'confidential;' and that they were either for the purpose of securing or disseminating legal advice. Nothing more is required to maintain the privilege."
Issues: Litigation - Vaughn index, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Attorney-client privilege
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-04-281COMPLAINT against U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES ( Filing fee $ 400 receipt number 0090-4932032) filed by THE PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Summons, # 4 Civil Cover Sheet)(Sandler, David) (Entered: 04/28/2017)
2017-04-282LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests (none) by THE PROTECT DEMOCRACY PROJECT, INC. (Sandler, David) (Entered: 04/28/2017)
2017-04-28Case Assigned to Judge Randolph D. Moss. (sth) (Entered: 04/28/2017)
2017-04-283SUMMONS (1) Issued Electronically as to U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES. (Attachments: # 1 Summons)(sth) (Entered: 04/28/2017)
2017-04-28SUMMONS Not Issued as to U.S. Attorney and the U.S. Attorney General (sth) (Entered: 04/28/2017)
2017-05-014STANDING ORDER: The parties are hereby ORDERED to comply with the directives set out in the attached Standing Order. Signed by Judge Randolph D. Moss on 5/1/2017. (lcrdm1, ) (Entered: 05/01/2017)
2017-05-015RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES served on 4/28/2017 (Sandler, David) (Entered: 05/01/2017)
2017-05-086NOTICE of Appearance by Benjamin Leon Berwick on behalf of PROTECT DEMOCRACY PROJECT, INC. (Berwick, Benjamin) (Entered: 05/08/2017)
2017-05-097REQUEST FOR SUMMONS TO ISSUE to the United States Attorney's Office re 1 Complaint, filed by PROTECT DEMOCRACY PROJECT, INC.. Related document: 1 Complaint, filed by PROTECT DEMOCRACY PROJECT, INC..(Sandler, David) (Entered: 05/09/2017)
2017-05-098REQUEST FOR SUMMONS TO ISSUE to the Attorney General of the United States re 1 Complaint, filed by PROTECT DEMOCRACY PROJECT, INC.. Related document: 1 Complaint, filed by PROTECT DEMOCRACY PROJECT, INC..(Sandler, David) (Entered: 05/09/2017)
2017-05-109SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons)(td) (Entered: 05/10/2017)
2017-05-1610ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/11/2017. Answer due for ALL FEDERAL DEFENDANTS by 6/10/2017. (Sandler, David) Modified on 5/17/2017 (jf). (Entered: 05/16/2017)
2017-05-1611ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/11/2017. Answer due for ALL FEDERAL DEFENDANTS by 6/10/2017. (Sandler, David) Modified on 5/17/2017 (jf). (Entered: 05/16/2017)
2017-05-17NOTICE OF CORRECTED DOCKET ENTRY: Document Nos. re 11 Summons Returned Executed in FOIA as to U.S. Attorney, 10 Summons Returned Executed in FOIA as to U.S. Attorney, was entered in error due to insufficient proof of service and will be refiled by counsel. (jf) (Entered: 05/17/2017)
2017-05-2412RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/16/2017. Answer due for ALL FEDERAL DEFENDANTS by 6/15/2017. (Sandler, David) (Entered: 05/24/2017)
2017-05-2413RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/16/17 (With Proof of Delivery Attached). (Sandler, David) (Entered: 05/24/2017)
2017-06-1514ANSWER to Complaint by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES.(Halainen, Daniel) (Entered: 06/15/2017)
2017-06-16MINUTE ORDER: The parties are hereby ORDERED to appear for a status conference on June 26, 2017, at 10:30 a.m. in Courtroom 21. The parties are further ORDERED to meet and confer prior to the status conference to discuss scheduling for further proceedings. Signed by Judge Randolph D. Moss on 6/16/2017. (lcrdm1, ) (Entered: 06/16/2017)
2017-06-16Set/Reset Hearings: Status Conference set for 6/26/2017, at 10:30 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 06/16/2017)
2017-06-26Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 6/26/2017. Order forthcoming. (Court Reporter: Jeff Hook.) (kt) (Entered: 06/26/2017)
2017-06-26MINUTE ORDER: On or before July 10, 2017, the parties are hereby ORDERED to file a joint status report informing the Court as to the status of Defendant's search for records responsive to Plaintiff's FOIA request, updating the Court as to the status of Plaintiff's request for a fee waiver, and proposing a schedule for further proceedings. Signed by Judge Randolph D. Moss on 6/26/2017. (lcrdm1, ) (Entered: 06/26/2017)
2017-06-27Set/Reset Deadlines: Joint Status Report due by 7/10/2017. (kt) (Entered: 06/27/2017)
2017-07-1015Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES. (Halainen, Daniel) (Entered: 07/10/2017)
2017-07-11MINUTE ORDER: Upon consideration of the Joint Status Report 15 , the parties are hereby ORDERED to submit a further joint status report on or before September 15, 2017, informing the Court as to the status of Defendant's production of responsive records to Plaintiff, updating the Court as to the status of Plaintiff's request for a fee waiver, and, if necessary, proposing a schedule for further proceedings. Signed by Judge Randolph D. Moss on 7/11/2017. (lcrdm1, ) (Entered: 07/11/2017)
2017-07-11Set/Reset Deadlines: Joint Status Report due by 9/15/2017. (kt) (Entered: 07/11/2017)
2017-09-1516Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES. (Halainen, Daniel) (Entered: 09/15/2017)
2017-09-16MINUTE ORDER: Upon consideration of the Joint Status Report 16 , the parties are hereby ORDERED to file a further joint status report on or before October 13, 2017, updating the Court as to what, if any, additional proceedings are necessary and proposing a schedule for those proceedings. Signed by Judge Randolph D. Moss on 9/16/2017. (lcrdm1, ) (Entered: 09/16/2017)
2017-09-18Set/Reset Deadlines: Joint Status Report due by 10/13/2017. (kt) (Entered: 09/18/2017)
2017-10-1317Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES. (Halainen, Daniel) (Entered: 10/13/2017)
2017-10-17MINUTE ORDER: Upon consideration of the parties' Joint Status Report 17 , it is hereby ORDERED that (1) Defendant shall file its motion for summary judgment on or before December 17, 2017; (2) Plaintiff shall file its consolidated cross-motion for summary judgment and opposition to Defendant's motion on or before January 23, 2018; (3) Defendant shall file its consolidated reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment on or before February 22, 2018; and (4) Plaintiff shall file its reply in support of its cross-motion for summary judgment on or before March 8, 2018. Signed by Judge Randolph D. Moss on 10/17/17. (lcrdm1, ) (Entered: 10/17/2017)
2017-10-18Set/Reset Deadlines: Defendant shall file its motion for summary judgment on or before 12/17/2017; Plaintiff shall file its consolidated cross-motion for summary judgment and opposition to Defendant's motion on or before 1/23/2018; Defendant shall file its consolidated reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment on or before 2/22/2018; Plaintiff shall file its reply in support of its cross-motion for summary judgment on or before 3/8/2018. (kt) (Entered: 10/18/2017)
2017-12-1518MOTION for Summary Judgment by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES (Attachments: # 1 Memorandum in Support, # 2 Declaration of Michael Marquis, # 3 Declaration of Hugh Gilmore, # 4 Statement of Facts, # 5 Text of Proposed Order)(Halainen, Daniel) (Entered: 12/15/2017)
2018-01-1719TRANSCRIPT OF PROCEEDINGS before Judge Randolph D. Moss held on June 26, 2017; Page Numbers: 1 - 9. Date of Issuance: January 17, 2018. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abo ve. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 2/7/2018. Redacted Transcript Deadline set for 2/17/2018. Release of Transcript Restriction set for 4/17/2018.(Hook, Jeff) (Entered: 01/17/2018)
2018-01-2320Cross MOTION for Summary Judgment by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Declaration of David Sandler in Support of Cross Motion, # 2 Text of Proposed Order)(Sandler, David) Modified on 1/24/2018 (znmw). (Entered: 01/23/2018)
2018-01-2321Memorandum in opposition to re 18 MOTION for Summary Judgment filed by PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Declaration of David Sandler in Support of Cross Motion, # 2 Text of Proposed Order)(Sandler, David) Modified on 1/24/2018 (znmw). (Entered: 01/23/2018)
2018-02-2022Unopposed MOTION for Extension of Time to File Response/Reply by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 02/20/2018)
2018-02-21MINUTE ORDER: Upon consideration of Defendant's Motion for Extension of Time 22 , it is hereby ORDERED that the motion is GRANTED. Defendant shall file its consolidated reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment on or before March 9, 2018; and Plaintiff shall file its reply in support of its cross-motion for summary judgment on or before March 23, 2018. Signed by Judge Randolph D. Moss on 2/21/2018. (lcrdm1, ) (Entered: 02/21/2018)
2018-02-21Set/Reset Deadlines: Defendant shall file its consolidated reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment on or before 3/9/2018; Plaintiff shall file its reply in support of its cross-motion for summary judgment on or before 3/23/2018. (kt) (Entered: 02/21/2018)
2018-03-0923Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment , 20 Cross MOTION for Summary Judgment / The Protect Democracy Project's Cross Motion for Summary Judgment, Memorandum of Points and Authorities in Support of The Protect Democracy Project's Cross Motion for Summary Judgment and in Opposition t by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 03/09/2018)
2018-03-09MINUTE ORDER: Upon consideration of Defendant's Motion for Extension of Time 23 , it is hereby ORDERED that the motion is GRANTED. Defendant shall file its consolidated reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion on or before April 9, 2018. It is further ORDERED that Plaintiff shall file its reply in support of its cross-motion for summary judgment on or before April 23, 2018. Signed by Judge Randolph D. Moss on 3/9/2018. (lcrdm1, ) (Entered: 03/09/2018)
2018-03-09Set/Reset Deadlines: Defendant's consolidated reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion due on or before 4/9/2018; Plaintiff's reply in support of its cross-motion for summary judgment due on or before 4/23/2018. (kt) (Entered: 03/09/2018)
2018-04-0424Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment , 20 Cross MOTION for Summary Judgment The Protect Democracy Project's Cross Motion for Summary Judgment, Memorandum of Points and Authorities in Support of The Protect Democracy Project's Cross Motion for Summary Judgment and in Opposition t by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 04/04/2018)
2018-04-05MINUTE ORDER: Upon consideration of the Motion for Extension of Time 24 , it is hereby ORDERED that the motion is GRANTED. Defendant shall file its consolidated reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion on or before April 20, 2018; and Plaintiff shall file its reply in support of its cross-motion for summary judgment on or before May 8, 2018. Signed by Judge Randolph D. Moss on 4/5/2018. (lcrdm1, ) (Entered: 04/05/2018)
2018-04-05Set/Reset Deadlines: Defendant shall file its consolidated reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion on or before 4/20/2018; Plaintiff shall file its reply in support of its cross-motion for summary judgment on or before 5/8/2018. (kt) (Entered: 04/05/2018)
2018-04-2025Memorandum in opposition to re 20 Cross MOTION for Summary Judgment / The Protect Democracy Project's Cross Motion for Summary Judgment, Memorandum of Points and Authorities in Support of The Protect Democracy Project's Cross Motion for Summary Judgment and in Opposition t and Reply in Support of 18 Defendant's Motion for Summary Judgment filed by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES. (Attachments: # 1 Declaration of Michael Bell, # 2 Declaration of Hugh Gilmore, # 3 Statement of Facts)(Halainen, Daniel) (Entered: 04/20/2018)
2018-04-2026REPLY to opposition to motion re 18 MOTION for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment filed by U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES. (Attachments: # 1 Declaration of Michael Bell, # 2 Declaration of Hugh Gilmore, # 3 Statement of Facts)(Halainen, Daniel) (Entered: 04/20/2018)
2018-05-0827REPLY to opposition to motion re 20 Cross MOTION for Summary Judgment / The Protect Democracy Project's Cross Motion for Summary Judgment, Memorandum of Points and Authorities in Support of The Protect Democracy Project's Cross Motion for Summary Judgment and in Opposition t filed by PROTECT DEMOCRACY PROJECT, INC.. (Sandler, David) (Entered: 05/08/2018)
2018-10-1628NOTICE of Change of Address by Daniel J. Halainen (Halainen, Daniel) (Entered: 10/16/2018)
2019-02-2729MEMORANDUM OPINION AND ORDER: It is hereby ORDERED that the Department's motion for summary judgment, Dkt. 18 , is GRANTED in part and DENIED in part. It is further ORDERED that Plaintiff's cross-motion for summary judgment, Dkt. 20 , is GRANTED in part and DENIED in part. See document for details. Signed by Judge Randolph D. Moss on 2/27/2019. (lcrdm1, ) (Entered: 02/27/2019)
2019-06-1230MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Matthew D. Forbes, :Firm- Debevoise & Plimpton LLP, :Address- 919 Third Ave., New York, NY 10022. Phone No. - (212) 909-6000. Fax No. - (212) 909-6836 Filing fee $ 100, receipt number 0090-6183299. Fee Status: Fee Paid. by PROTECT DEMOCRACY PROJECT, INC. (Sandler, David) (Entered: 06/12/2019)
2019-06-12MINUTE ORDER: Matthew D. Forbes's motion for leave to appear pro hac vice, Dkt. 30 , is hereby GRANTED. Matthew D. Forbes may appear pro hac vice in this matter. Signed by Judge Randolph D. Moss on 6/12/2019. (lcrdm1, ) (Entered: 06/12/2019)
2019-06-1731ENTERED IN ERROR. . . . .NOTICE OF WITHDRAWAL OF APPEARANCE as to PROTECT DEMOCRACY PROJECT, INC.. Attorney David J. Sandler terminated. (Sandler, David) Modified on 6/20/2019 (ztd). (Entered: 06/17/2019)
2019-06-20NOTICE OF ERROR re 31 Notice of Withdrawal of Appearance; emailed to dsandler@debevoise.com, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. Please see LcvR 5.1(a) & 5.1(d). (ztd, ) (Entered: 06/20/2019)
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