Case Detail

FOIA Project Annotation: Judge Royce Lamberth has ruled that the Center for Medicare and Medicaid Services must disclose 2009 data on the Medicare Advantage program submitted to the agency by private insurers because the agency failed to show that disclosure of the data would either impair the agency's ability to receive such data in the future or would cause the submitters substantial competitive harm under Exemption 4 (confidential business information). The data was requested by Brian Biles, a professor at George Washington University School of Public Health and Health Services. The agency argued that although it would still continue to get the required data, its quality would be diminished if disclosed. But Lamberth noted that the agency failed to show "how bids could be manipulated by [insurance company participants] by using the requested data when the Bid Pricing Tool requires actuary-verified data and other strict structural requirements that cannot be modified without serious consequences." He added that in a 2010 response to similar concerns, CMS had argued that "there was no risk of loss to the integrity of the bidding process, not because of the type of data that was being released, but because the bidding process consisted of actuary-verified data. . ." Turning to the agency's competitive harm argument, Lamberth rejected the claim that disclosure would allow companies to change their strategies. He pointed out that the agency's assertion that "disclosure will enable [insurance companies] to change their practices to better compete with other [companies] is nothing more than arguing that disclosure has a likelihood of creating competition among [the companies]â€"an assertion that does not necessarily prove that disclosure has a likelihood of creating substantial competitive harm, which implies an 'unfair' exposure of one competitor to that competitor's detriment and to a non-exposed competitor's gain." Lamberth agreed with Biles that disclosure would put participating insurers in the same competitive position. Lamberth rejected the agency's assertion that disclosure of the 2009 data would allow Biles to identify trends in using data from later years as it was subsequently released. He noted that CMS's conclusion "does not follow, as the request for release of more recent data, as well as data over multiple years that could be trended, creates a distinguishable factual situation that requires a new analysis and new evidence of substantial competitive harm. Speculative assertions do not serve as affirmative evidence." He rejected the agency's broad competitive harm claims. He observed that "here, [the agency's] claims are again too conclusory to satisfy their burden of proof. 'Efficiency' and 'financial position' are highly generalized terms that do not, in themselves, prove competitive harm; stating that disclosure of cost information would reveal 'financial position' could describe any sort of disclosure of [insurance participants'] information, including the disclosure of payment and enrollment information that CMS has already made public."
Issues: Exemption 4 - Competitive harm

Date Filed	Doc #	Docket Text
2011-11-14	1	COMPLAINT against CENTERS FOR MEDICARE AND MEDICAID SERVICES ( Filing fee $ 350, receipt number 4616043708) filed by BRIAN BILES. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 11/15/2011)
2011-11-14		SUMMONS (3) Issued as to CENTERS FOR MEDICARE AND MEDICAID SERVICES, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 11/15/2011)
2011-12-07	2	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/28/2011. Answer due for ALL FEDERAL DEFENDANTS by 12/28/2011. (Gutman, Jeffrey) (Entered: 12/07/2011)
2011-12-07	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/21/11. (Gutman, Jeffrey) (Entered: 12/07/2011)
2011-12-12	4	NOTICE of Request to Reissue Summons to Defendant CMS by BRIAN BILES re Summons Issued as to AUSA (Gutman, Jeffrey) (Entered: 12/12/2011)
2011-12-12		SUMMONS REISSUED (1) as to CENTERS FOR MEDICARE AND MEDICAID SERVICES (mmh) (Entered: 12/12/2011)
2011-12-21	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTERS FOR MEDICARE AND MEDICAID SERVICES served on 11/21/2011 (Gutman, Jeffrey) (Entered: 12/21/2011)
2011-12-28	6	Consent MOTION for Extension of Time to Respond to Plaintiff's Complaint by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Graham-Oliver, Heather) (Entered: 12/28/2011)
2011-12-29		MINUTE ORDER granting 6 Consent Motion for Extension of Time to Answer/Respond to Complaint. The answer/response will be due 1/12/2012. Signed by Judge Amy Berman Jackson on 12/29/2011. (MT) (Entered: 12/29/2011)
2011-12-29		Set/Reset Deadlines: Defendant's answer or otherwise response to Plaintiff's complaint is now due by 1/12/2012. (jth) (Entered: 12/29/2011)
2012-01-12	7	Defendant's ANSWER to 1 Complaint by CENTERS FOR MEDICARE AND MEDICAID SERVICES.(Graham-Oliver, Heather) (Entered: 01/12/2012)
2012-01-13	8	ORDER that defendant file on or before 2/9/12 a dispositive motion or, in the alternative, a report setting forth the schedule for document production to plaintiff. Signed by Judge Amy Berman Jackson on 1/13/2012. (MT) (Entered: 01/13/2012)
2012-01-23		Set/Reset Deadlines: Defendant shall file either a dispositive motion or, in the alternative, a report setting forth the schedule for document production to plaintiff by 2/9/2012. (jth) (Entered: 01/23/2012)
2012-01-30	9	MOTION to Strike 7 Answer to Complaint (First Defense) by BRIAN BILES (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Gutman, Jeffrey) (Entered: 01/30/2012)
2012-02-09	10	NOTICE of Proposed Order For Briefing by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Graham-Oliver, Heather) (Entered: 02/09/2012)
2012-02-10	11	SCHEDULING ORDER: Motion for summary judgment will be due by 4/30/2012 with the opposition due on 5/30/2012, and the reply will be due on 6/13/2012. Signed by Judge Amy Berman Jackson on 2/10/2012. (MT) (Entered: 02/10/2012)
2012-02-13	12	Memorandum in opposition to re 9 MOTION to Strike 7 Answer to Complaint (First Defense) filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Attachments: # 1 Exhibit)(Graham-Oliver, Heather) (Entered: 02/13/2012)
2012-02-13	15	MOTION to Substitute Health and Human Services as party defendant by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (See Docket Entry 12 to view document) (jf, ) (Entered: 02/28/2012)
2012-02-17	13	REPLY to opposition to motion re 9 MOTION to Strike 7 Answer to Complaint (First Defense) filed by BRIAN BILES. (Gutman, Jeffrey) (Entered: 02/17/2012)
2012-02-17	16	RESPONSE re 15 MOTION to Substitute Health and Human Services as party defendant filed by BRIAN BILES. (See Docket Entry 15 to view document) (jf, ) (Entered: 02/28/2012)
2012-02-27	14	MOTION for Extension of Time to File Response/Reply in Support of Defendant's Motion to Substitute the Department of Health and Human Services As A Party Defendant by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Graham-Oliver, Heather) (Entered: 02/27/2012)
2012-03-01	17	REPLY to opposition to motion re 15 MOTION to Substitute Party filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Graham-Oliver, Heather) (Entered: 03/01/2012)
2012-03-06		NOTICE of Hearing: Status Conference scheduled for 4/3/2012 at 9:30 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 03/06/2012)
2012-03-23	18	STATEMENT from Plaintiff Brian Biles authorizing law student Olga Metelitsa to appear in Court or at other proceedings and to prepare documents on his behalf. (jth) (Entered: 03/30/2012)
2012-03-23	19	ORDER granting 18 Statement by Plaintiff Brian Biles authorizing law student Olga Metelitsa to appear in Court or at other proceedings and to prepare documents on his behalf. Signed by Judge Amy Berman Jackson on 3/23/2012. (jth) (Entered: 03/30/2012)
2012-04-03		Minute Entry for proceedings held before Judge Amy Berman Jackson: Status Conference held on 4/3/2012. Denying 9 Motion to Strike; Granting 14 Motion for Extension of Time to File Reply (The Reply was previously submitted and filed on 3/1/2012); Granting 15 Motion to Substitute Party. The DEPARTMENT OF HEALTH AND HUMAN SERVICES is substituted for the CENTERS FOR MEDICARE AND MEDICAID SERVICES as the Defendant in this matter. The Clerk is directed to note the Docket accordingly. (Court Reporter Lisa Walker Griffith) (jth) (Entered: 04/03/2012)
2012-04-30	20	MOTION for Summary Judgment by DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Declaration, # 2 Declaration, # 3 Exhibit Exhibits)(Graham-Oliver, Heather) (Entered: 04/30/2012)
2012-05-17	21	Consent MOTION to Modify Briefing Schedule by BRIAN BILES (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Gutman, Jeffrey) (Entered: 05/17/2012)
2012-05-18		MINUTE ORDER granting 21 Consent Motion to Modify Briefing Schedule. The opposition to the motion for summary judgment will be due 7/13/2012 and the reply to the opposition will be due 7/27/2012. Signed by Judge Amy Berman Jackson on 5/18/2012. (MT) (Entered: 05/18/2012)
2012-05-18		Set/Reset Deadlines: Opposition to the Motion for Summary Judgment is now due by 7/13/2012; the Reply is due by 7/27/2012. (jth) (Entered: 05/18/2012)
2012-07-06	22	Consent MOTION for Leave to File Excess Pages in Forthcoming Summary Judgment Brief by BRIAN BILES (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Gutman, Jeffrey) (Entered: 07/06/2012)
2012-07-06		MINUTE ORDER granting 22 Consent Motion for Leave to File Excess Pages in Forthcoming Summary Judgment Brief. Plaintiff is granted leave to file a 55 page opposition/cross-motion for summary judgment due 7/13/2012. Signed by Judge Amy Berman Jackson on 7/6/2012. (MT) (Entered: 07/06/2012)
2012-07-13	23	Memorandum in opposition to re 20 MOTION for Summary Judgment filed by BRIAN BILES. (Attachments: # 1 Statement of Facts Response to Statement of Facts not in Dispute, # 2 Declaration Declaration of Brian Biles, # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C, # 6 Exhibit Exhibit D, # 7 Exhibit Exhibit E, # 8 Exhibit Exhibit F, # 9 Exhibit Exhibit G)(Gutman, Jeffrey) (Entered: 07/13/2012)
2012-07-13	24	Cross MOTION for Summary Judgment by BRIAN BILES (Attachments: # 1 Memorandum in Support, # 2 Declaration of Brian Biles, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Statement of Facts, # 11 Text of Proposed Order)(Gutman, Jeffrey) (Entered: 07/13/2012)
2012-07-24	25	Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION for Summary Judgment, 24 Cross MOTION for Summary Judgment by DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Graham-Oliver, Heather) (Entered: 07/24/2012)
2012-07-25		MINUTE ORDER granting 25 Consent Motion for Extension of Time to File Response/Reply re 24 Cross MOTION for Summary Judgment, 20 MOTION for Summary Judgment. The reply to the motion for summary judgment and opposition to the cross-motion for summary judgment will be due 8/10/2012. The reply to the cross-motion for summary judgment will be due 8/27/2012. Signed by Judge Amy Berman Jackson on 7/25/2012. (MT) (Entered: 07/25/2012)
2012-07-25		Set/Reset Deadlines: Defendant's Reply in support of their Motion for Summary Judgment and Opposition to the Cross-Motion for Summary Judgment is due by 8/10/2012; Plaintiff's Reply in support of their Cross-Motion for Summary Judgment is due by 8/27/2012. (jth) (Entered: 07/25/2012)
2012-08-08	26	Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION for Summary Judgment, 24 Cross MOTION for Summary Judgment by DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Graham-Oliver, Heather) (Entered: 08/08/2012)
2012-08-10		MINUTE ORDER granting 26 Motion for Extension of Time to File Reply and Opposition. Defendant's opposition to plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment are due 8/13/12, and plaintiff's reply to defendant's opposition to the cross-motion for summary judgment is due 8/30/12. Signed by Judge Amy Berman Jackson on 8/10/12. (DMK) (Entered: 08/10/2012)
2012-08-10		Set/Reset Deadlines: Defendant's Reply in support of its motion for summary judgment and Opposition to Plaintiff's cross-motion for summary judgment is due by 8/13/2012; Plaintiff's Reply in support of the cross motion for summary judgment is due by 8/30/2012. (jth) (Entered: 08/10/2012)
2012-08-13	27	Memorandum in opposition to re 24 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Memorandum in Support Response to Plaintiff's SOMF, # 2 Exhibit Supplemental Rice Declaration, # 3 Exhibit Declaration of Scott Theisen, # 4 Exhibit Declaration of R. Smith, # 5 Exhibit Declaration of Yin Yiu)(Graham-Oliver, Heather) . (Entered: 08/13/2012)
2012-08-13	29	REPLY to opposition to re 20 MOTION for Summary Judgment filed by DEPARTMENT OF HEALTH AND HUMAN SERVICES. (See Docket Entry 27 to view document) (jf, ) (Entered: 09/07/2012)
2012-08-14		NOTICE OF ERROR re 27 Memorandum in Opposition; emailed to heather.graham-oliver@usdoj.gov, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry (jf, ) (Entered: 08/14/2012)
2012-08-14		NOTICE OF ERROR re 27 Memorandum in Opposition; emailed to heather.graham-oliver@usdoj.gov, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Please refile document, 3. using the reply event (jf, ) (Entered: 08/14/2012)
2012-08-27	28	MOTION for Extension of Time to 9/10/12 to File Reply Memorandum as to 20 Defendant's MOTION for Summary Judgment by BRIAN BILES (Attachments: # 1 Memorandum in support, # 2 Text of Proposed Order)(jeb, ) (Entered: 08/27/2012)
2012-08-28		MINUTE ORDER granting 28 Motion for Extension of Time to File Response/Reply re 20 MOTION for Summary Judgment. It is ORDERED that plaintiff's reply is due on or before 9/10/12. Signed by Judge Amy Berman Jackson on 8/28/12. (DMK) (Entered: 08/28/2012)
2012-08-28		Set/Reset Deadlines: Plaintiff's Reply in support of the Cross Motion for Summary Judgment is now due by 9/10/2012. (jth) (Entered: 08/28/2012)
2012-09-10	30	REPLY to opposition to motion re 24 Cross MOTION for Summary Judgment filed by BRIAN BILES. (Attachments: # 1 Declaration of Brian Biles, # 2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J, # 5 Exhibit K, # 6 Exhibit L, # 7 Exhibit M, # 8 Exhibit N, # 9 Exhibit O, # 10 Exhibit P)(Gutman, Jeffrey) (Entered: 09/10/2012)
2012-12-03	31	Case reassigned to Chief Judge Royce C. Lamberth. Judge Amy Berman Jackson no longer assigned to the case. (ds) (Entered: 12/03/2012)
2013-03-21	32	ORDER denying 20 defendant's Motion for Summary Judgment; granting 24 plaintiff's cross-Motion for Summary Judgment. Signed by Chief Judge Royce C. Lamberth on 03/21/2013. (lcrcl4) (Entered: 03/21/2013)
2013-03-21	33	MEMORANDUM OPINION explaining the Court's reasoning as to 32 , its order denying defendant's Motion for Summary Judgment 20 and granting plaintiff's cross-Motion for Summary Judgment 24 . Signed by Chief Judge Royce C. Lamberth on 03/21/2013. (lcrcl4) (Entered: 03/21/2013)
2013-04-03	34	MOTION to Amend/Correct 32 Order on Motion for Summary Judgment, 33 Memorandum & Opinion, by BRIAN BILES (Attachments: # 1 Text of Proposed Order)(Gutman, Jeffrey) (Entered: 04/03/2013)
2013-04-04	35	ORDER granting 34 Motion to Amend/Correct. Signed by Chief Judge Royce C. Lamberth on 04/04/2013. (lcrcl4) (Entered: 04/04/2013)
2013-04-04	36	AMENDED ORDER. Per the Court's Order in 35 , the Court issues this Amended Order to replace the Court's Order at 32 . This Amended Order is issued nunc pro tunc as of 03/21/13. Signed by Chief Judge Royce C. Lamberth on 04/04/2013. (lcrcl4) (Entered: 04/04/2013)
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