Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that Consumers' Checkbook is entitled to a fee waiver for its request for database records concerning Medicare claims from physicians in several localities and that information that might identify physicians is not protected by Exemption 6 (invasion of privacy). The Center for Medicare and Medicaid Services told Consumers' Checkbook that the data would cost $3,944.70 per locality. As a result, Consumers' Checkbook narrowed its request to Washington, D.C. and requested a fee waiver. CMS denied the fee waiver request, Consumers' Checkbook filed suit, and CMS then supplemented its motion by indicating it would apply Exemption 6 to physician information. Relying on a line of cases that distinguished the privacy interest in professional information from personal information, Sullivan rejected the Exemption 6 claim, noting that "the information plaintiff requests to be disclosed concerns only the business income of the physicians involved and not intimate facts about their personal lives." He added that the information sought "will merely reflect a portion of the physician's income. There will be no other financial information about the practitioner's business; the data will merely indicate the amount of government funds individual practitioners received." Turning to the fee waiver denial, Sullivan noted that Consumers' Checkbook had an arrangement with a local TV station to cover its reports on its morning show and that other information would be available on its website, although some of it would be available only by subscription or payment. Sullivan found this an adequate description of how Consumers' Checkbook would disseminate the information based on the D.C. Circuit's ruling in Judicial Watch v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003), in which the court found that the requester "sufficiently described its publication methods by generally describing numerous avenues of publication and detailing past efforts." He also rejected CMS's claim that Consumers' Checkbook could not fully analyze the data, pointing out that "even if plaintiff though is only able to provide a partial measure of the overall quality of Medicare services, such a contribution would still be a significant public benefit considering the complexity and importance of the Medicare program." Sullivan also rejected the agency's claim that, because Consumers' Checkbook would charge for some of its reports its commercial interest outweighed the public interest in a fee waiver. He observed that "the fact that plaintiff charges fees in order to produce and distribute its work does not render its interest 'primarily commercial.' To the contrary, as plaintiff does not operate for profit, and charges fees only in order to support its operations because it does not accept advertising, its primary interest is in distributing useful consumer information to the public."
Issues: Exemption 6 - Invasion of privacy, Public Interest Fee Waiver - Dissemination

Date Filed	Doc #	Docket Text
2006-12-26	1	COMPLAINT against UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK ( Filing fee $ 350 receipt number 4616001174.)filed by CONSUMERS' CHECKBOOK. (Attachments: # 1 Exhibits# 2 Civil Cover Sheet)(tg, ) (Entered: 12/27/2006)
2006-12-26	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CONSUMERS' CHECKBOOK (tg, ) (Entered: 12/27/2006)
2006-12-26		Summons (5) Issued as to UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK, U.S. Attorney and U.S. Attorney General (tg, ) (Entered: 12/27/2006)
2007-01-17	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 12/29/2006. (nmw, ) Modified on 1/22/2007 (nmw, ). (Entered: 01/22/2007)
2007-01-17	4	ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 12/26/2006, answer due 2/26/2007; MICHAEL O. LEAVITT served on 12/26/2006, answer due 2/26/2007; LESLIE V. NORWALK served on 12/26/2006, answer due 2/26/2007. (Attachments: # 1 Leavitt Return of Service# 2 Norwalk Return of Service)(nmw, ) Modified on 1/22/2007 (nmw, ). (Entered: 01/22/2007)
2007-01-17	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 1/5/2007, answer due 3/6/2007; MICHAEL O. LEAVITT served on 1/8/2007, answer due 3/9/2007; LESLIE V. NORWALK served on 1/8/2007, answer due 3/9/2007. (Attachments: # 1 Leavitt Return of Service# 2 Norwalk Return of Service)(nmw, ) (Entered: 01/22/2007)
2007-01-17	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 12/29/2006, answer due 2/27/2007; MICHAEL O. LEAVITT served on 12/29/2006, answer due 2/27/2007; LESLIE V. NORWALK served on 12/29/2006, answer due 2/27/2007 (nmw, ) (Entered: 01/22/2007)
2007-01-22		NOTICE OF CORRECTED DOCKET ENTRY: Document No. 4 was entered in error with incorrect service dates and will be refiled by the Clerk's Office. (nmw, ) (Entered: 01/22/2007)
2007-01-24	7	MOTION for Extension of Time to Respond to the Complaint by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK. (Attachments: # 1 Text of Proposed Order)(McBarnette, Andrea) (Entered: 01/24/2007)
2007-01-29	8	Memorandum in opposition to re 7 MOTION for Extension of Time to Respond to the Complaint filed by CONSUMERS' CHECKBOOK. (Attachments: # 1 Exhibit)(Albrecht, Stephen) (Entered: 01/29/2007)
2007-01-29		MINUTE ORDER granting in part and denying in part 7 Defendant's Motion for Extension of Time over plaintiff's objection. Defendant shall answer or otherwise respond to the complaint no later than March 1, 2007. No further extensions will be granted. Signed by Judge Emmet G. Sullivan on January 29, 2007. (lcegs1) (Entered: 01/29/2007)
2007-01-29		Set/Reset Deadlines: Answer due by 3/1/2007. (clv, ) (Entered: 01/29/2007)
2007-03-01	9	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK. (Attachments: # 1 Affidavit Marquis# 2 Text of Proposed Order)(McBarnette, Andrea) (Entered: 03/01/2007)
2007-03-12	10	Memorandum in opposition to re 9 MOTION for Summary Judgment filed by CONSUMERS' CHECKBOOK. (Attachments: # 1 Affidavit Krughoff Declaration)(Albrecht, Stephen) (Entered: 03/12/2007)
2007-03-12	11	MOTION for Scheduling Conference by CONSUMERS' CHECKBOOK. (Albrecht, Stephen) (Entered: 03/12/2007)
2007-03-20	12	ENTERED IN ERROR.....REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK. (McBarnette, Andrea) Modified on 3/21/2007 (jf, ). (Entered: 03/20/2007)
2007-03-20	13	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK. (Attachments: # 1 Exhibit A, Appeal Decision)(McBarnette, Andrea) (Entered: 03/20/2007)
2007-03-21		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 12 Reply to opposition to Motion was entered in error as a duplicate filing to 13 . (jf, ) (Entered: 03/21/2007)
2007-04-04	14	AMENDED COMPLAINT against UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK filed by CONSUMERS' CHECKBOOK. (Attachments: # 1 Exhibit A-F# 2 Exhibit G-I)(nmw, ) (Entered: 04/05/2007)
2007-04-30	15	SUPPLEMENTAL MEMORANDUM to re 9 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK. (Attachments: # 1 Exhibit Declarations and Attachments)(McBarnette, Andrea) (Entered: 04/30/2007)
2007-05-18	16	Cross MOTION for Summary Judgment by CONSUMERS' CHECKBOOK (Attachments: # 1 Text of Proposed Order # 2 Plaintiff's Memorandum in Support of Motion for Summary Judgment# 3 Statement of Facts # 4 Declaration# 5 Exhibit 1-4# 6 Exhibit 5# 7 Exhibit 6-9# 8 Exhibit 10-11# 9 Appendix A-B)(Albrecht, Stephen) Modified on 5/21/2007 (jf, ). (Entered: 05/18/2007)
2007-05-18	17	RESPONSE to 15 SUPPLEMENTAL MEMORANDUM to re 9 MOTION for Summary Judgment filed by CONSUMERS' CHECKBOOK. (See docket entry 16 to view document) (jf, ) (Entered: 05/21/2007)
2007-05-22	18	ENTERED IN ERROR.....NOTICE of Subtitution of Counsel by Stephen M. Albrecht on behalf of CONSUMERS' CHECKBOOK Substituting for attorney Stephen Albrecht (Albrecht, Stephen) Modified on 5/23/2007 (jf, ). (Entered: 05/22/2007)
2007-05-23		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 18 Substitution of Counsel was entered in error in as to LCvR 83.2.(jf, ) (Entered: 05/23/2007)
2007-05-29	19	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment AND RESPONSE TO DEFENDANTS' SUPPLEMENT TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK. (McBarnette, Andrea) (Entered: 05/29/2007)
2007-06-04	20	Unopposed MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment by CONSUMERS' CHECKBOOK (Attachments: # 1 Text of Proposed Order)(Carome, Patrick) (Entered: 06/04/2007)
2007-06-04		MINUTE ORDER granting 20 Plaintiff's Unopposed Motion for an Extension of Time to Reply to Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment. Plaintiff's reply is due no later than June 25, 2007. Signed by Judge Emmet G. Sullivan on June 4, 2007. (lcegs2) (Entered: 06/04/2007)
2007-06-04		Set/Reset Deadlines: Replies due by 6/25/2007. (clv, ) (Entered: 06/04/2007)
2007-06-06	21	NOTICE of Change of Address by Patrick Joseph Carome (Carome, Patrick) (Entered: 06/06/2007)
2007-06-06	22	NOTICE OF WITHDRAWAL OF APPEARANCE as to CONSUMERS' CHECKBOOK. Attorney Stephen M. Albrecht terminated. (Carome, Patrick) (Entered: 06/06/2007)
2007-06-22	23	REPLY in Support of Plaintiff's 16 Cross Motion for Summary Judgment filed by CONSUMERS' CHECKBOOK. (Carome, Patrick). (Entered: 06/22/2007)
2007-08-07	24	NOTICE of Appearance by Nicole Rabner on behalf of CONSUMERS' CHECKBOOK (Rabner, Nicole) (Entered: 08/07/2007)
2007-08-22	25	ORDER denying 9 Defendants' Motion for Summary Judgment; denying as moot 11 Plaintiff's Motion for a Scheduling Conference; granting 16 Plaintiff's Motion for Summary Judgment; directing defendants to product all records without fees by September 21, 2007; and directing parties to file joint status report by September 28, 2007. See accompanying Memorandum Opinion. Signed by Judge Emmet G. Sullivan on August 22, 2007. (lcegs1) (Entered: 08/22/2007)
2007-08-22	26	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on August 22, 2007. (lcegs1) (Entered: 08/22/2007)
2007-08-23		Set/Reset Deadlines: all records without fees due by 9/21/2007.,Status Report due by 9/28/2007. (clv, ) (Entered: 08/23/2007)
2007-08-29	27	MOTION to Stay August 22, 2007 Order by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK (Attachments: # 1 Text of Proposed Order)(McBarnette, Andrea) (Entered: 08/29/2007)
2007-08-31	28	RESPONSE to Defendants' Motion for Stay (related docket no. 27 ) filed by CONSUMERS' CHECKBOOK. (Attachments: # 1 Text of Proposed Order)(Carome, Patrick) . (Entered: 08/31/2007)
2007-08-31	29	Unopposed MOTION for Extension of Time to Move for Attorneys' Fees by CONSUMERS' CHECKBOOK (Attachments: # 1 Text of Proposed Order)(Carome, Patrick) (Entered: 08/31/2007)
2007-08-31		MINUTE ORDER granting 29 Unopposed Motion for Extension of Time. The time in which Plaintiff has to move for attorneys' fees is extended to the later of (a) twenty (20) days after Defendants advise the Court and Plaintiff that they are not appealing 25 the Court's August 22, 2007 Order, or (b) twenty (20) days after the issuance of the mandate of the Court of Appeals for the D.C. Circuit in the event that Defendants commence an appeal. Signed by Judge Emmet G. Sullivan on August 31, 2007. (lcegs1) (Entered: 08/31/2007)
2007-09-10	30	REPLY to opposition to motion re 27 MOTION to Stay August 22, 2007 Order filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK. (McBarnette, Andrea) (Entered: 09/10/2007)
2007-09-19	31	NOTICE of Subtitution of Counsel by Paul Freeborne on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES Substituting for attorney Andrea McBarnette (Freeborne, Paul) (Entered: 09/19/2007)
2007-09-19	32	Supplemental MOTION to Stay re 27 MOTION to Stay August 22, 2007 Order by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Final Declaratory Judgment And Permanent Injunction)(Freeborne, Paul) (Entered: 09/19/2007)
2007-09-19	33	ORDER granting in part and denying in part 27 defendants' Motion for Stay Pending Consideration of Whether to Appeal and defendants' Supplement to Motion for Stay. Signed by Judge Emmet G. Sullivan on September 19, 2007. (lcegs1) (Entered: 09/19/2007)
2007-09-28	34	STATUS REPORT , Joint by CONSUMERS' CHECKBOOK. (Carome, Patrick) (Entered: 09/28/2007)
2007-10-03		MINUTE ORDER. In accordance with the Court's August 22, 2007 Order directing the parties to submit a joint status report and recommendation for future proceedings five business days after the passage of the deadline by which Defendants were ordered to provide plaintiff with the requested records, and in light of the Court's September 19, 2007 Order granting in part Defendants' Motion to Stay Pending Consideration of Whether to Appeal, parties shall submit a joint status report and recommendation for future proceedings by no later than November 9, 2007. Signed by Judge Emmet G. Sullivan on October 3, 2007. (lcegs1) (Entered: 10/03/2007)
2007-10-04		Set/Reset Deadlines: Status Report due by 11/9/2007. (clv, ) (Entered: 10/04/2007)
2007-10-19	35	NOTICE OF APPEAL as to 25 Order on Motion for Summary Judgment,, Order on Motion for Miscellaneous Relief,,, 26 Memorandum & Opinion by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, MICHAEL O. LEAVITT, LESLIE V. NORWALK. Fee Status: No Fee Paid. Parties have been notified. (Freeborne, Paul) (Entered: 10/19/2007)
2007-10-22		Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 35 Notice of Appeal, (jf, ) (Entered: 10/22/2007)
2007-11-07		USCA Case Number 07-5343 for 35 Notice of Appeal, filed by MICHAEL O. LEAVITT, LESLIE V. NORWALK, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (jf) (Entered: 11/07/2007)
2007-11-09	36	STATUS REPORT (Joint) of Nov. 9, 2007 by CONSUMERS' CHECKBOOK. (Rabner, Nicole) (Entered: 11/09/2007)
2007-11-14		MINUTE ORDER. In view of 36 the parties' Joint Status Report, the parties are directed to submit a further joint status report by no later than five (5) business days after the Court of Appeals for the D.C. Circuit issues its mandate on the appeal in this case. Signed by Judge Emmet G. Sullivan on November 14, 2007. (lcegs1) (Entered: 11/14/2007)
2009-01-30	37	USCA JUDGMENT as to 35 Notice of Appeal, filed by MICHAEL O. LEAVITT, LESLIE V. NORWALK, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby reversed and the case is remanded for further proceedings. (USCA No. 07-5343) (Attachments: # 1 Opinion)(mmh, ) (Entered: 02/06/2009)
2009-06-24	38	MANDATE of USCA (certified copy) as to 35 Notice of Appeal, filed by MICHAEL O. LEAVITT, LESLIE V. NORWALK, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ; USCA Case Number 07-5343.Ordered and Adjudged that the judgment of the District Court appealed from in this cause is hereby reversed and the case remanded for further proceedings, in accordance with the opinion of the court filed herein this date. (Attachments: # 1 Opininon)(ls, ) (Entered: 06/29/2009)
2009-07-09		MINUTE ORDER. The parties are directed to submit a joint status report and recommendation for future proceedings no later than August 12, 2009. Signed by Judge Emmet G. Sullivan on July 9, 2009. (lcegs1) (Entered: 07/09/2009)
2009-07-14		Set/Reset Deadlines: Status Report due by 8/12/2009 (clv, ) (Entered: 07/14/2009)
2009-08-11	39	STATUS REPORT Joint by CONSUMERS' CHECKBOOK. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order Order)(Rabner, Nicole) (Entered: 08/11/2009)
2009-08-11	40	Unopposed MOTION for Extension of Time to Move for Attorneys Fees by CONSUMERS' CHECKBOOK (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order Order)(Rabner, Nicole) (Entered: 08/11/2009)
2009-08-11		MINUTE ORDER. In view of the parties' joint status report, the parties are directed to submit a further joint status report no later than ten (10) business days after the U.S. Supreme Court issues a final disposition in this case. The Court also grants 40 plaintiff's unopposed motion for a further extension of time to move for attorneys fees. The time in which plaintiff has to move for attorneys fees is hereby extended to twenty (20) days after the U.S. Supreme Court issues a final disposition in this case. Signed by Judge Emmet G. Sullivan on August 11, 2009. (lcegs1) (Entered: 08/11/2009)
2010-11-24		MINUTE ORDER directing the parties to file a joint status report, including a recommendation for further proceedings, by no later than December 8, 2010. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. Signed by Judge Emmet G. Sullivan on November 24, 2010. (lcegs1) (Entered: 11/24/2010)
2010-11-30		Set/Reset Deadlines: Status Report due by 12/8/2010 (clv, ) (Entered: 11/30/2010)
2010-12-08	41	STATUS REPORT (Joint) by CONSUMERS' CHECKBOOK. (Rabner, Nicole) (Entered: 12/08/2010)
2010-12-08	42	ORDER entering judgment for defendants. Signed by Judge Emmet G. Sullivan on December 8, 2010. (lcegs1) (Entered: 12/08/2010)
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