Case Detail

FOIA Project Annotation: Magistrate Judge John Facciola has ruled that the law firm of Terris, Pravlik & Millian is not eligible for attorney's fees because its FOIA suit against the Centers for Medicare and Medicaid Services did not affect the disclosure of the documents requested. The law firm submitted a request in 2005 for records relating to the monitoring of a remedial order issued in a case against the District of Columbia. The request was sent to the CMS regional office in Philadelphia, which sent back responsive records in 2006. The FOIA analyst assigned the case retired in 2008 without having processed the request further. In 2010, the request became part of a backlog reduction plan implemented by CMS. The retired analyst, who at this time was working at CMS as a contractor, contacted TPM on June 29, 2010 to inquire whether the law firm was still interested in the records, which by this time had been completely processed. At that time, the FOIA office learned for the first time that TPM had filed a FOIA suit two weeks earlier. The records were released in their entirety on July 2 and CMS agreed to expedite a further search for more updated records, which were released in September. CMS explained to Facciola that, although it took much too long to process the request, the eventual completion of the request was the result of internal agency administrative procedures and had nothing to do with the TPM lawsuit. Although TPM argued that CMS did not respond to its request until after it had filed suit, Facciola noted that "[the agency] explains how the backlog caused the absence of a response in the period between 2005 and 2010, and that it was the systematic reduction of the backlog that led to the 2010 response. TPM gives no reason to disbelieve the explanation of the difference in treatment in responding to the request before and after the reduction in the backlog. . .Since [the agency's] explanation for the difference in treatment pre- and post-reduction of the backlog is credible, TPM's attempts to draw from that difference the proposition that [the agency] is not telling the truth fails." Facciola observed that "it is hard to describe CMS as exercising due diligence when it appears that the documents, once discovered, were not disclosed to TPM for several years. Nevertheless, it must be recalled that Congress did not enact the fee-shifting provision of FOIA to punish agencies for their slowness in processing FOIA requests, but to reward plaintiffs whose filing of lawsuits alters the government's slowness and brings about disclosure. In a given case, the absence of due diligence may justify the conclusion that the alteration of the government's position and a sudden burst of alacrity in making the disclosure was caused by that lawsuit. In this case there is positive proof that the filing of the lawsuit did not expedite CMS's processing of the 2005 request. It was the Task Force's actions in reducing the backlog that led to the disclosure of the documents to TPM that had been collected several years before, and that disclosure had literally nothing to do with the filing of this lawsuit."
Issues: Litigation - Attorney's fees - Eligibility - Causal effect

Date Filed	Doc #	Docket Text
2010-06-09	1	COMPLAINT against CENTERS FOR MEDICARE & MEDICAID SERVICES ( Filing fee $ 350, receipt number 4616030304) filed by TERRIS, PRAVLIK & MILLIAN, LLP. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet)(rdj) (Entered: 06/09/2010)
2010-06-09		SUMMONS (3) Issued as to CENTERS FOR MEDICARE & MEDICAID SERVICES, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 06/09/2010)
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