Case Detail

FOIA Project Annotation: Judge Reggie Walton's ruling that the National Institute of Health conducted an adequate search for records concerning a 2007 review of the operations of the Department of Spiritual Ministry and properly withheld records under Exemption 5 (privileges) provides an illustration that while individual employees may remember episodes in their government careers as terribly important, unless such episodes produce tangible change in an agency's policies, they may seem far less important than they did to their participants. Here, Henry Heffernan, who served as the Roman Catholic priest in NIH's Department Spiritual Ministry and participated in the 2007 review before retiring in 2013, requested records about the review and its implementation. The agency initially sent Heffernan an interim response of 35 pages, eventually providing 614 pages with redactions made under Exemption 5 and Exemption 6 (invasion of privacy). Heffernan then filed suit, insisting that there must be more. For the most part, however, Walton found that the agency's search had been adequate and that Heffernan's personal belief that more records must exist did not count for much. Over the course of the litigation, the agency provided three separate Vaughn indices, and with only two exceptions, Walton found the agencies' affidavits provided a thorough description of how and why it conducted its searches. What primarily bothered Heffernan as a participant was the lack of any polices implemented as a result of the review. But Walton pointed out that "the issue the Court must resolve is whether the defendant's search for the requested policies was adequate, not whether those policies in fact exist. Consequently, contrary to the plaintiff's proposition that these policies must exist, the plaintiff's conjecture and speculative arguments that policies must have been adopted have not been produced has no bearing on the Court's determination of whether the defendant's search was adequate. In any event, John M. Pollack, the Chief of the Spiritual Care Department, affirmed that 'no new policies were put into practice as a result of the 2007 operational review.'" The agency explained that the Spiritual Care Department's policies and guidelines were housed in a policy book within the department. Accepting the agency's explanation, Walton noted that "in fact, the defendant conducted multiple searches of the Spiritual Care Department's policy book, the only place likely to contain the Clinical Care policies sought by the plaintiff. And the defendant went beyond the policy book, searching electronic files using reasonably tailored search terms and paper files of employees likely to possess the policies sought by the plaintiff." Heffernan suggested that the agency had not used keyword searches most likely to find responsive records. Walton pointed out that agencies had wide discretion in crafting search terms and noted that "there is no indication that the plaintiff requested the defendant to employ [specific] search terms either in his FOIA request or subsequent negotiations regarding the defendant's searches for responsive records." Walton observed that "although the defendant does not explain why it selected the search terms it used, the Court nonetheless finds the search terms that were employed were reasonable." Heffernan questioned why the agency had failed to locate a specific 2007 PowerPoint presentation. Instead, the agency located a two-page PowerPoint presentation and a 21-page PowerPoint presentation with redactions, neither of which were the PowerPoint presentation Heffernan was seeking. Although Walton found that the fact that the agency had not located the PowerPoint Heffernan remembered from 2007 in sufficient to undercut the agency's search, he indicated that "defendant's declarations, taken together, do not provide the Court the minimum information needed for the Court to conclude that the defendant conducted a search 'reasonably calculated to uncover all relevant documents.' Although the defendant's declarations sufficiently identify the search terms used and the locations searched, they do not provide the requisite 'averment that all locations likely to contain responsive records were searched.'" Walton also found the agency had failed to adequately explain its search for a 2007 email sent by Pollack. In both instances, he allowed the agency to provide a supplemental affidavit sufficient to meet its burden of proof on the searches. Heffernan challenged the agency's deliberative process privilege claims by arguing that he knew from his own experience while at NIH that the agency had fully intended to implement the policy recommendations that came out of the 2007 operational review. But Walton agreed with the agency that there was no evidence that any final decisions were ever made. He pointed out that "even though the SMD took initial steps regarding the potential implementation of changes based on these recommendations, those steps do not appear to have borne any fruit. Rather, the records suggest that those steps were nothing more than part of the SMD's deliberative process of determining whether changes to its policies and practices based on those recommendations were appropriate." He added that "there is no evidence that the SMD actually implemented actual changes to its policies or practices based on the Operational Review Team's final report or its recommendations." The agency withheld a pre-final draft of a press release. Heffernan argued that the press release was not deliberative because it was not related to any policy change. Here, Walton agreed with Heffernan, noting that "there is no indication as to what deliberative process the withheld pre-final draft press release concerned or the role in the formulation of policies or recommendations for policy change undertaken by the 2007 operational review." But as to a draft report, Walton found that "the Operational Review Team's pre-final draft reports are both pre-decisional and deliberative because they predate the preparation of the Operational Review Team's final report and they include recommendations and proposed changes to the SMD's existing policies." Finally, Walton found the agency had not sufficiently shown that it conducted an appropriate segregability analysis.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

FOIA Project Annotation: Judge Reggie Walton has wrapped up the remaining issues involved in litigation brought by Henry Heffernan, who served as the Roman Catholic priest in NIH's Department of Spiritual Ministry and participated in a 2007 review of its operations before retiring in 2013. In response to Heffernan's request for records about the review, the agency disclosed 650 pages with redactions under Exemption 5 (privileges) and Exemption 6 (invasion of privacy). In his first ruling in the case, Walton agreed with Heffernan that the agency had not shown that it conducted an adequate search. Several items related to the search remained, including Heffernan's claims that the agency improperly used compound search terms, failed to use certain other search terms, and failed to search all offices likely to have responsive records. Walton found the agency had justified its use of compound search terms, noting that "in instances where the defendant concluded that the use of compound search terms was not appropriate, [the agency] ran additional searches utilizing individual search terms." As to the agency's failure to use search terms suggested by Heffernan, Walton pointed out that "the defendant has explained why the use of other search terms suggested by plaintiff is not reasonable." Walton also found the agency had justified its decision to limit the search to certain staffers. Heffernan challenged the agency's decision to withhold a draft press release under Exemption 5 because its creation involved a consultant retained by the agency rather than an agency employee. Walton indicated that the consultant was included within the scope of the deliberative process privilege, noting that "the Court concludes that the consultant corollary is applicable and that the defendant did not waive his right to assert the applicability of the deliberative process privilege to the draft press release by sending the draft release to [the consultant]." Walton explained that he had already concluded that the draft press release was both predecisional and deliberative. Heffernan cited Mayer, Brown v. IRS, 537 F. Supp. 2d 128 (D.D.C. 2008), as holding that draft press releases were not protected by the deliberative process privilege. Walton disagreed, noting that "Mayer, Brown does not, as the plaintiff suggests, stand for the proposition that all draft press releases are not protected by the deliberative process privilege; rather, it instructs only that draft press releases that are similar to a final release ultimately issued by an agency are not covered by the deliberative process privilege." Walton observed that "the defendant's declarant makes clear that the draft press release was never adopted." Walton also concluded that the agency had shown that it conducted an adequate segregability analysis.
Issues: Search - Reasonableness of search

Date Filed	Doc #	Docket Text
2015-12-17	1	COMPLAINT against UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ( Filing fee $ 400 receipt number 0090-4352852) filed by HENRY G. HEFFERNAN. (Attachments: # 1 Civil Cover Sheet Ex. A Civil Cover Sheet, # 2 Summons for HHS Office of General Counsel, # 3 Summons for U.S. Attorneys Office for DC, # 4 Summons for Attorney General of the United States)(Niehuss, Juliette) (Entered: 12/17/2015)
2015-12-17		Case Assigned to Judge Reggie B. Walton. (md) (Entered: 12/18/2015)
2015-12-21	2	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 12/21/2015)
2016-01-20	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/31/2015. Answer due for ALL FEDERAL DEFENDANTS by 1/30/2016. (Attachments: # 1 Exhibit 1 USPS Certified Mail receipts, # 2 Exhibit 2 Certified Mail returned executed US Attorney for DC, # 3 Exhibit 3 Certified Mail tracking information Attorney General, # 4 Exhibit 4 Certified Mail tracking HHS, # 5 Exhibit 5 Summons returned Proof of Service)(Niehuss, Juliette) (Entered: 01/20/2016)
2016-01-20	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/28/15., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 12/28/2015; (See docket entry no. 3 to view documents) (td) (Entered: 01/21/2016)
2016-02-01	5	ENTERED IN ERROR.....NOTICE of Appearance by Marina Utgoff Braswell on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) Modified on 2/19/2016 (zjf). (Entered: 02/01/2016)
2016-02-01	6	NOTICE of Appearance by Juliette Markham Niehuss on behalf of HENRY G. HEFFERNAN (Niehuss, Juliette) (Entered: 02/01/2016)
2016-02-01	7	ANSWER to Complaint by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES.(Braswell, Marina) (Entered: 02/01/2016)
2016-02-02	8	GENERAL ORDER. Signed by Judge Reggie B. Walton on February 2, 2016. (lcrbw2) (Entered: 02/02/2016)
2016-02-19	9	MEET AND CONFER STATEMENT. (Braswell, Marina) (Entered: 02/19/2016)
2016-02-19		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 5 Notice of Appearance was entered in error and counsel was instructed to refile said pleading using their assigned login/password. (jf) (Entered: 02/19/2016)
2016-02-19	10	NOTICE of Appearance by Marina Utgoff Braswell on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 02/19/2016)
2016-02-24	11	NOTICE of Appearance by Cathy Ann Harris on behalf of HENRY G. HEFFERNAN (Harris, Cathy) (Entered: 02/24/2016)
2016-02-25		MINUTE ORDER. Upon consideration of the Joint Proposed Schedule, and in light of the parties' consent, it is hereby ORDERED that: (1) on or before April 8, 2016, the defendant will provide to the plaintiff a Vaughn index and declaration of the information withheld by the defendant pursuant to a Freedom of Information Act ("FOIA") exemption; (2) on or before May 9, 2016, the plaintiff will inform the defendant of the exemption claim(s) that the plaintiff intends to challenge through further litigation; and (3) on or before May 19, 2016, the parties shall file a proposed briefing schedule. Signed by Judge Reggie B. Walton on February 25, 2016. (lcrbw2) (Entered: 02/25/2016)
2016-02-25		Set/Reset Deadlines: Defendant's Vaughn Index due by 4/8/2016; Plaintiff's Notice to Defendant of exemption claim(s) that the Plaintiff intends to challenge through further litigation due by 5/9/2016; proposed briefing schedule due by 5/19/2016. (tg) (Entered: 02/25/2016)
2016-04-06	12	Unopposed MOTION for Extension of Time to Produce Vaughn Index and Declaration by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 04/06/2016)
2016-04-06		MINUTE ORDER granting 12 Motion for Extension of Time. Upon consideration of the Defendant's Unopposed Motion Extension of Time, and in light of the parties' consent, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that (1) on or before April 22, 2016, the defendant shall provide to the plaintiff a Vaughn index and declaration of the information withheld by the defendant pursuant to a Freedom of Information Act exemption; (2) on or before May 23, 2016, the plaintiff shall inform the defendant of the exemption claims that the plaintiff intends to challenge through further litigation; (3) on or before June 5, 2016, the parties shall file a proposed briefing schedule. Signed by Judge Reggie B. Walton on April 6, 2016. (lcrbw2) (Entered: 04/06/2016)
2016-04-07		Set/Reset Deadlines: Joint Status Report due by 6/5/2016; Vaughn Index due by 4/22/2016, (hs) (Entered: 04/07/2016)
2016-05-13	13	Consent MOTION for Extension of Time to File Complainant's response to Defendant's Vaughn Index by HENRY G. HEFFERNAN (Niehuss, Juliette) (Entered: 05/13/2016)
2016-05-13	14	MINUTE ORDER granting 13 Motion for Extension of Time to File. Upon consideration of the Plaintiff's Consent Motion for Extension of Time, and in light of the parties' consent, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that on or before June 13, 2016, the plaintiff shall inform the defendant of the exemption claims that the plaintiff intends to challenge through further litigation. It is further ORDERED that on or before June 27, 2016, the parties will file a proposed briefing schedule. Signed by Judge Reggie B. Walton on May 13, 2016. (lcrbw2) (Entered: 05/13/2016)
2016-05-13		Set/Reset Deadlines: Proposed Briefing Schedule due by 6/27/2016 (hs) (Entered: 05/13/2016)
2016-06-13	15	Joint MOTION to Amend/Correct 14 Order on Motion for Extension of Time to File,, by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 06/13/2016)
2016-06-14		MINUTE ORDER granting 15 Motion to Amend/Correct. Upon consideration of the Joint Motion to Alter Schedule in the Case, and in light of the parties' consent, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that: (1) on or before August 15, 2016, the defendant will produce a supplemental Vaughn declaration and/or index to the plaintiff; (2) on or before September 9, 2016, the plaintiff will inform the defendant as to any additional exemption claims and/or search issues the plaintiff seeks to pursue in this litigation; and (3) on or before September 16, 2016, the parties will file a proposed briefing schedule. Signed by Judge Reggie B. Walton on June 14, 2016. (lcrbw2) (Entered: 06/14/2016)
2016-06-17		Set/Reset Deadlines: Proposed Briefing Schedule due by 9/16/2016 Vaughn Index due by 8/15/2016, (tj) (Entered: 06/17/2016)
2016-09-16	16	Joint MOTION for Extension of Time to Confer on Vaughn Index and file briefing schedule by HENRY G. HEFFERNAN (Attachments: # 1 Text of Proposed Order)(Niehuss, Juliette) (Entered: 09/16/2016)
2016-09-16		MINUTE ORDER granting 16 Motion for Extension of Time. Upon consideration of the parties' Joint Status Report and Request for More Time to Confer on Vaughn Index, and for good cause show, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the parties shall confer regarding the defendant's Second Vaughn Index and the defendant's current search for responsive documents on or before October 17, 2016. It is further ORDERED that the parties shall file an additional joint status report on or before October 17, 2016, stating whether briefing will be needed on the sufficiency of the Vaughn Index prior to briefing on summary judgment and proposing a briefing schedule. Signed by Judge Reggie B. Walton on September 16, 2016. (lcrbw2) (Entered: 09/16/2016)
2016-09-20		Set/Reset Deadlines: Attorney Meet and Confer Conference due by 10/17/2016, Joint Status Report due by 10/17/2016 (hs) (Entered: 09/20/2016)
2016-10-17	17	PROPOSED BRIEFING SCHEDULE (Joint Proposed Briefing Schedule on Vaughn Index) by HENRY G. HEFFERNAN. (Niehuss, Juliette) (Entered: 10/17/2016)
2016-10-17		MINUTE ORDER. Upon consideration of the parties' Proposed Briefing Schedule on Vaughn Index, and for good cause shown, it is hereby ORDERED that this case shall proceed as follows: (1) the plaintiff shall file a motion for an order for a complete Vaughn Index and supplemental document search on or before November 14, 2016; (2) the defendant shall file its opposition to the plaintiff's motion on or before December 9, 2016; and (3) the plaintiff shall file its reply in support of its motion on or before December 23, 2016. Signed by Judge Reggie B. Walton on October 17, 2016. (lcrbw2) (Entered: 10/17/2016)
2016-10-17		Set/Reset Deadlines: Plaintiff's Motion for Vaughn Index due by 11/14/2016. Response due by 12/9/2016 Reply due by 12/23/2016. (hs) (Entered: 10/17/2016)
2016-11-14	18	MOTION for Vaughn Index by HENRY G. HEFFERNAN (Attachments: # 1 Memorandum in Support Points and Authorities, # 2 Text of Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14)(Niehuss, Juliette) (Entered: 11/14/2016)
2016-11-15	19	NOTICE of Filing of Corrected Memorandum in Support by HENRY G. HEFFERNAN re 18 MOTION for Vaughn Index (Attachments: # 1 Memorandum in Support Corrected Memorandum in Support of Motion for Complete Vaughn Index)(Niehuss, Juliette) (Entered: 11/15/2016)
2016-12-09	20	Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Vaughn Index by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 12/09/2016)
2016-12-12		MINUTE ORDER. Upon consideration of the Defendant's Unopposed Motion [for] Extension of Time, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the defendant shall file a response to the plaintiff's motion for a complete Vaughn index on or before December 14, 2016. Signed by Judge Reggie B. Walton on December 12, 2016. (lcrbw2) (Entered: 12/12/2016)
2016-12-12		Set/Reset Deadlines: Defendant's Response due by 12/14/2016 (hs) (Entered: 12/12/2016)
2016-12-14	21	Memorandum in opposition to re 18 MOTION for Vaughn Index , in part, filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Cornell Declaration)(Braswell, Marina) (Entered: 12/14/2016)
2016-12-30	22	NOTICE Praecipe on Proposed Order for Vaughn Index and Document Search by HENRY G. HEFFERNAN re 18 MOTION for Vaughn Index , 21 Memorandum in Opposition (Niehuss, Juliette) (Entered: 12/30/2016)
2017-01-02		MINUTE ORDER. Upon consideration of the Plaintiff's Motion for a Complete Vaughn Index, the Defendant's Opposition in Part to Plaintiff's Motion for a Complete Vaughn Index, and the Plaintiff's Praecipe Regarding Vaughn Index and Document Search, it is hereby ORDERED that the Plaintiff's Motion for a Complete Vaughn Index, ECF No. 18, is DENIED as moot. It is further ORDERED that the defendant shall perform the tasks agreed upon as set out in the Cornell Declaration, ECF No. 21-1, on or before January 31, 2017. Signed by Judge Reggie B. Walton on January 2, 2017. (lcrbw2) (Entered: 01/02/2017)
2017-06-09	23	PROPOSED BRIEFING SCHEDULE Joint Status Report and Proposed Briefing Schedule by HENRY G. HEFFERNAN. (Niehuss, Juliette) (Entered: 06/09/2017)
2017-06-09		MINUTE ORDER. Upon consideration of the parties' Joint Status [Report] and Proposed Briefing Schedule, it is hereby ORDERED that this case shall proceed as follows: (1) the defendant shall file its motion for summary judgment on or before July 14, 2017; (2) the plaintiff shall file his opposition to the defendant's motion for summary judgment and his cross-motion for summary judgment, if any, on or before August 18, 2017; (3) the defendant shall file its reply in support of its motion for summary judgment and its opposition to the plaintiff's cross-motion for summary judgment on or before September 18, 2017; and (4) the plaintiff shall file his reply in support of his cross-motion for summary judgment on or before October 2, 2017. Signed by Judge Reggie B. Walton on June 9, 2017. (lcrbw2) (Entered: 06/09/2017)
2017-06-13		Set/Reset Deadlines: Summary Judgment motion due by 7/14/2017. Response to Motion for Summary Judgment due by 8/18/2017. Reply to Motion for Summary Judgment due by 9/18/2017. Reply to Cross Motion due by 10/2/2017. (hs) (Entered: 06/13/2017)
2017-07-13	24	Unopposed MOTION for Extension of Time to File Dispositive Motion by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 07/13/2017)
2017-07-14		MINUTE ORDER. Upon consideration of the Defendant's Unopposed Motion [for] Extension of Time, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that this case shall proceed as follows: (1) the defendant shall file its motion for summary judgment on or before July 19, 2017; (2) the plaintiff shall file his opposition to the defendant's motion and his cross-motion for summary judgment, if any, on or before August 23, 2017; (3) the defendant shall file its reply in support of its motion and its opposition to the plaintiff's cross-motion on or before September 18, 2017; and (4) the plaintiff shall file his reply in support of his cross-motion on or before October 2, 2017. Signed by Judge Reggie B. Walton on July 14, 2017. (lcrbw2) (Entered: 07/14/2017)
2017-07-14		Set/Reset Deadlines: Defendant's Summary Judgment motions due by 7/19/2017. Defendant's Response to Motion for Summary Judgment/Cross Motion due by 8/23/2017. Reply to Motion for Summary Judgment due by 9/18/2017. Plaintiff's Reply to Cross Motion due by 10/2/2017. (hs) (Entered: 07/14/2017)
2017-07-19	25	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 07/19/2017)
2017-07-19	26	NOTICE of Filing by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES re 25 MOTION for Summary Judgment (Attachments: # 1 Cornell Declaration, # 2 Uhl Declaration, # 3 Vaughn Index)(Braswell, Marina) (Entered: 07/19/2017)
2017-08-23	27	Memorandum in opposition to re 25 MOTION for Summary Judgment and Cross Motion for Summary Judgment filed by HENRY G. HEFFERNAN. (Attachments: # 1 Memorandum in Support Opposition to Summary Judgment and Cross-Motion for Summary Judgment, # 2 Statement of Facts Ex 1 Plaintiffs Response SOF and Statement of Material Facts, # 3 Exhibit 2 Declaration of Henry Heffernan, # 4 Exhibit 3 Annotated Third Vaughn, # 5 Exhibit 4 FOIA requests, # 6 Exhibit 5 FOIA initial response, # 7 Exhibit 6 FOIA final response, # 8 Exhibit 7 FOIA appeal, # 9 Exhibit 8 First Index and Cornell Decl, # 10 Exhibit 9 May June 2016 emails, # 11 Exhibit 10 June 13 2016 letter, # 12 Exhibit 11 2nd Vaughn w Plaintiffs comments, # 13 Exhibit 12 Sept 9 2016 letter, # 14 Exhibit 13 Sept Oct 2016 emails, # 15 Exhibit 14 3rd Vaughn Index Uhl declaration, # 16 Exhibit 15 Feb 2017 emails, # 17 Exhibit 16 3rd production correspondence, # 18 Exhibit 17 Item D release, # 19 Exhibit 18 April 2016 CC report, # 20 Exhibit 19 July 2017 CC report, # 21 Exhibit 20 Sample Gormley release, # 22 Exhibit 21 Power Point, # 23 Exhibit 22 Action Plan redactions, # 24 Exhibit 23 ORT Reports redactions, # 25 Exhibit 24 ORT Background materials, # 26 Exhibit 25 April 2014 OR report, # 27 Text of Proposed Order Proposed order)(Niehuss, Juliette) (Entered: 08/23/2017)
2017-08-23	28	Cross MOTION for Summary Judgment by HENRY G. HEFFERNAN. (See Docket Entry 27 to view document). (znmw) (Entered: 08/24/2017)
2017-09-13	29	Unopposed MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment , 28 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 09/13/2017)
2017-09-14		MINUTE ORDER granting 29 . Upon consideration of the Defendant's Unopposed Motion [for] Extension of Time, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the defendant shall file its reply in support of its motion for summary judgment and its opposition to the plaintiff's cross-motion for summary judgment on or before October 12, 2017. It is further ORDERED that, upon review of the defendant's anticipated filing, the plaintiff shall forthwith file a notice on the docket informing the Court as to the time needed to file his reply in support of his cross-motion. Signed by Judge Reggie B. Walton on September 14, 2017. (lcrbw2) (Entered: 09/14/2017)
2017-09-14		Set/Reset Deadlines: Defendant's Reply to its Motion for Summary Judgment due by 10/12/2017. (hs) (Entered: 09/14/2017)
2017-10-11	30	Unopposed MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment , 28 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 10/11/2017)
2017-10-12		MINUTE ORDER granting 30 . Upon consideration of the Defendant's Unopposed Motion for Further Extension of Time, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the defendant shall file its reply in support of its motion for summary judgment and its opposition to the plaintiff's cross-motion for summary judgment on or before October 27, 2017. It is further ORDERED that, upon review of the defendant's anticipated filing, the plaintiff shall forthwith file a notice on the docket informing the Court as to the time needed to file his reply in support of his cross-motion. Signed by Judge Reggie B. Walton on October 12, 2017. (lcrbw2) (Entered: 10/12/2017)
2017-10-12		Set/Reset Deadlines: Defendant's Reply in support of its Motion for Summary Judgment/Cross Motion Opposition due by 10/27/2017. (hs) (Entered: 10/12/2017)
2017-10-27	31	MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment , 28 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Clipper Declaration)(Braswell, Marina) (Entered: 10/27/2017)
2017-10-31		MINUTE ORDER granting 31 . Upon consideration of the Defendant's Motion for Further Extension of Time, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the defendant shall file its reply in support of its motion for summary judgment and its opposition to the plaintiff's cross-motion for summary judgment on or before November 30, 2017. It is further ORDERED that, upon review of the defendant's anticipated filing, the plaintiff shall forthwith file a notice on the docket informing the Court as to the time needed to file his reply in support of his cross-motion. It is further ORDERED that further extensions of time will be granted only upon a showing of exigent circumstances. Signed by Judge Reggie B. Walton on October 31, 2017. (lcrbw2) (Entered: 10/31/2017)
2017-10-31		Set/Reset Deadlines: Defendant's Reply to Motion for Summary Judgment/Cross Motion due by 11/30/2017. (hs) (Entered: 10/31/2017)
2017-11-30	32	Memorandum in opposition to re 28 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Response to Plaintiff's Statement of Facts, # 2 Garcia-Malene Declaration, # 3 Pollack Declaration, # 4 Henderson Declaration, # 5 Laura's Declaration)(Braswell, Marina) (Entered: 11/30/2017)
2017-11-30	33	REPLY to opposition to motion re 25 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Garcia-Malene Declaration, # 2 Pollack Declaration)(Braswell, Marina) (Entered: 11/30/2017)
2017-12-01	34	NOTICE of Filing by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES re 32 Memorandum in Opposition, (Attachments: # 1 Exhibits 1-5)(Braswell, Marina) (Entered: 12/01/2017)
2017-12-04	35	MOTION for Extension of Time to File Response/Reply NOTICE OF TIME NEEDED TO FILE REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT by HENRY G. HEFFERNAN re 34 Notice (Other), Order on Motion for Extension of Time to File Response/Reply. (Niehuss, Juliette) Modified event title on 12/5/2017 (znmw). (Entered: 12/04/2017)
2017-12-15	36	NOTICE of Filing of Supplemental Declaration by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES re 25 MOTION for Summary Judgment , 33 Reply to opposition to Motion (Attachments: # 1 Supplemental Declaration)(Braswell, Marina) (Entered: 12/15/2017)
2017-12-21	37	Consent MOTION for Leave to File Excess Pages Plaintiff's Motion for Extension of Page Limit by HENRY G. HEFFERNAN (Attachments: # 1 Memorandum in Support Memorandum of Points and Authorities and Proposed Order)(Niehuss, Juliette) (Entered: 12/21/2017)
2017-12-21		MINUTE ORDER. Upon consideration of both the Plaintiff's Notice of Time Needed to File Reply in Support of Cross-Motion for Summary Judgment and the Plaintiff's Motion for Extension of Page Limit, and in light of the defendant's consent, it is hereby ORDERED that both motions are GRANTED. It is further ORDERED that the plaintiff shall file his reply brief in support of his cross-motion for summary judgment on or before December 22, 2017. It is further ORDERED that the plaintiff's reply brief shall not exceed thirty pages. Signed by Judge Reggie B. Walton on December 21, 2017. (lcrbw2) (Entered: 12/21/2017)
2017-12-22	38	REPLY to opposition to motion re 28 MOTION for Summary Judgment Plaintiff's Reply in Support of Plaintiff's Cross Motion for Summary Judgment and to Agency Opposition to Plaintiff's Cross-Motion filed by HENRY G. HEFFERNAN. (Attachments: # 1 Text of Proposed Order Plaintiff's Proposed Order on Summary Judgment, # 2 Exhibit Plaintiff's Supplemental Exhibit 1 Heffernan Supp. Decl., # 3 Exhibit Plaintiff's Supplemental Exhibit 2 Garcia-Malene letter, # 4 Exhibit Plaintiff's Supplemental Exhibit 3 New power point document, # 5 Exhibit Plaintiff's Supplemental Exhibit 4 Gallin email, # 6 Exhibit Plaintiff's Supplemental Exhibit 5 Gormley email)(Niehuss, Juliette) (Entered: 12/22/2017)
2018-06-27	39	ORDER. In accordance with the Memorandum Opinion issued on this same date, it is hereby ORDERED that the Defendant's Motion for Summary Judgment, ECF No. 25, is GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART. It is further ORDERED that the Plaintiff's Opposition to Summary Judgment and Cross-Motion for Summary Judgment, ECF No. 27, is DENIED. See attached Order for details. Signed by Judge Reggie B. Walton on June 27, 2018. (lcrbw2) (Entered: 06/27/2018)
2018-06-27	40	MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on June 27, 2018. (lcrbw2) (Entered: 06/27/2018)
2018-06-27		Set/Reset Deadlines: Renewed Summary Judgment motion due by 7/27/2018. (hs) (Entered: 06/27/2018)
2018-07-23	41	MOTION for Extension of Time to File Response/Reply to Court's June 27, 2018 Order by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 07/23/2018)
2018-07-24	42	NOTICE to the Court by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES re 41 MOTION for Extension of Time to File Response/Reply to Court's June 27, 2018 Order (Braswell, Marina) (Entered: 07/24/2018)
2018-07-30	43	ERRATA regarding ECF 41 by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Corrected Proposed Order)(Braswell, Marina) (Entered: 07/30/2018)
2018-07-31		MINUTE ORDER. Upon consideration of the defendant's motion, and for good cause shown, it is hereby ORDERED that the 41 Defendant's Motion for Extension of Time is GRANTED. It is further ORDERED that the defendant shall respond to the Court's Order dated June 27, 2018, on or before August 3, 2018. Signed by Judge Reggie B. Walton on July 31, 2018. (lcrbw2) (Entered: 07/31/2018)
2018-07-31		Set/Reset Deadlines: Response to the Court's Order dated June 27, 2018 due by 8/3/2018 (hs) (Entered: 07/31/2018)
2018-08-01	44	Joint MOTION to Stay Proceedings by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 08/01/2018)
2018-08-21		MINUTE ORDER. Upon consideration of the parties' 44 Joint Motion to Stay the Proceedings, it is hereby ORDERED that the motion is DENIED. It is further ORDERED that the deadline for the defendant to file a renewed motion for summary judgment is VACATED. It is further ORDERED that the parties shall file a joint status report on or before September 14, 2018, advising the Court of how they wish to proceed in this case. Signed by Judge Reggie B. Walton on August 21, 2018. (lcrbw2) (Entered: 08/21/2018)
2018-08-21		Set/Reset Deadlines: Joint Status Report due by 9/14/2018 (hs) (Entered: 08/21/2018)
2018-09-14	45	Joint STATUS REPORT by HENRY G. HEFFERNAN. (Niehuss, Juliette) (Entered: 09/14/2018)
2018-09-18		MINUTE ORDER. Upon consideration of the parties' 45 Joint Status Report, it is hereby ORDERED that the defendant shall file his renewed motion for summary judgment on or before October 31, 2018. It is further ORDERED that the plaintiff shall file his opposition to the defendant's motion and his cross-motion for summary judgment on or before November 30, 2018. It is further ORDERED that the defendant shall file a reply in support of his motion and an opposition to the plaintiff's cross-motion on or before January 10, 2019. It is further ORDERED that the plaintiff shall file a reply in support of his cross-motion on or before January 25, 2019. Signed by Judge Reggie B. Walton on September 18, 2018. (lcrbw2) (Entered: 09/18/2018)
2018-09-18		Set/Reset Deadlines: Renewed Summary Judgment motion due by 10/31/2018. Response to Motion for Summary Judgment/Cross Motion due by 11/30/2018. Reply to Motion for Summary Judgment due by 1/10/2019. Reply to Cross Motions due by 1/25/2019. (hs) (Entered: 09/18/2018)
2018-10-31	46	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Garcia-Malene Supplemental Declaration)(Braswell, Marina) (Entered: 10/31/2018)
2018-11-30	47	Memorandum in opposition to re 46 MOTION for Summary Judgment Opposition to Renewed Motion for Summary Judgment and Cross-Motion for Summary Judgment filed by HENRY G. HEFFERNAN. (Attachments: # 1 Memorandum in Support Memorandum in Opposition to Summary Judgment and in Support of Cross-Motion, # 2 Statement of Facts Plaintiff's Response to Defendant's Statement of Facts, # 3 Statement of Facts Plaintiff's Statement of Material Facts, # 4 Exhibit 1 Excerpts ORT slides, # 5 Exhibit 2 Clinical Center Org Chart, # 6 Exhibit 3 Gallin and Finan May 2007 correspondence re ORT, # 7 Exhibit 4 Gadlin July 2007 letter, # 8 Exhibit 5 Sept 21 2007 ABCR report excerpts, # 9 Exhibit 6 April 28 2007 Gallin email re press release, # 10 Exhibit 7 Gallin email to Finan SGE process, # 11 Text of Proposed Order Plaintiff's Proposed Order)(Niehuss, Juliette) (Entered: 11/30/2018)
2018-11-30	48	Cross MOTION for Summary Judgment by HENRY G. HEFFERNAN; (See docket entry no. 47 to view.) (ztd) (Entered: 12/03/2018)
2019-01-07	49	Unopposed MOTION to Stay (Defendant's Unopposed Motion to Stay Proceedings in Light of Lapse in Appropriations) by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 01/07/2019)
2019-01-08		MINUTE ORDER. Upon consideration of the 49 Defendant's Unopposed Motion to Stay Proceedings in Light of Lapse of Appropriations, and for good cause shown, it is hereby ORDERED that the motion is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that the defendant seeks to vacate the impending deadlines in this case. The motion is DENIED in all other respects. It is further ORDERED that the impending deadlines in this case are VACATED pending further Order of the Court. It is further ORDERED that, on or before January 28, 2019, the parties shall file a joint status report regarding how this case shall proceed. Signed by Judge Reggie B. Walton on January 8, 2019. (lcrbw2) (Entered: 01/08/2019)
2019-01-08		Set/Reset Deadlines: Joint Status Report due by 1/28/2019 (hs) (Entered: 01/08/2019)
2019-01-23		MINUTE ORDER. In light of the continued lapse in appropriations, it is hereby ORDERED that the previously imposed deadline for filing a joint status report on or before January 28, 2019, is VACATED. It is further ORDERED that, on or before fourteen days after appropriations have been restored, the parties shall file a joint status report proposing new deadlines in this case. Signed by Judge Reggie B. Walton on January 23, 2019. (lcrbw2) (Entered: 01/23/2019)
2019-02-08	50	Joint STATUS REPORT and Proposed Briefing Schedule by HENRY G. HEFFERNAN. (Niehuss, Juliette) (Entered: 02/08/2019)
2019-02-08		MINUTE ORDER. Upon consideration of the parties' 50 Joint Status Report, and for good cause shown, it is hereby ORDERED that the defendant shall file a reply in support of his renewed motion for summary judgment and an opposition to the plaintiff's cross-motion for summary judgment on or before February 27, 2019. It is further ORDERED that the plaintiff shall file a reply in support of his cross-motion for summary judgment on or before March 15, 2019. Signed by Judge Reggie B. Walton on February 8, 2019. (lcrbw2) (Entered: 02/08/2019)
2019-02-11		Set/Reset Deadlines: defendant's reply in support of his renewed motion for summary judgment and an opposition to the plaintiff's cross-motion for summary judgment due by 2/27/2019, plaintiff's reply in support of his cross-motion for summary judgment on due by 3/15/2019. (hs) (Entered: 02/11/2019)
2019-02-27	51	Memorandum in opposition to re 48 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Statement of Facts Response, # 2 Second Supplemental Garcia-Malene Declaration)(Braswell, Marina) (Entered: 02/27/2019)
2019-02-27	52	REPLY to opposition to motion re 46 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Second Supplemental Garcia-Malene Declaration)(Braswell, Marina) (Entered: 02/27/2019)
2019-03-15	53	REPLY to opposition to motion re 48 MOTION for Summary Judgment in Support of Plaintiff's Cross-Motion for Summary Judgment filed by HENRY G. HEFFERNAN. (Attachments: # 1 Exhibit A (Second version of April 28, 2007 with different redactions))(Niehuss, Juliette) (Entered: 03/15/2019)
2019-09-30	54	ORDER. In accordance with the attached Order, it is hereby ORDERED that the 46 Defendant's Renewed Motion for Summary Judgment is GRANTED. It is further ORDERED that the 47 Plaintiff's Opposition to Summary Judgment and Cross-Motion for Summary Judgment is DENIED. It is further ORDERED that this Order is not a final Order subject to appeal. Signed by Judge Reggie B. Walton on September 30, 2019. (lcrbw2) (Entered: 09/30/2019)
2019-10-16	55	MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on October 16, 2019. (lcrbw2) (Entered: 10/16/2019)
2019-10-16	56	ORDER. In accordance with the Memorandum Opinion issued by the Court on this same date, it is hereby ORDERED that the 46 Defendant's Renewed Motion for Summary Judgment is GRANTED. It is further ORDERED that the 47 Plaintiff's Opposition to Summary Judgment and Cross-Motion for Summary Judgment is DENIED. It is further ORDERED that summary judgment is ENTERED for the defendant on the plaintiff's Complaint. It is further ORDERED that this case is CLOSED. Signed by Judge Reggie B. Walton on October 16, 2019. (lcrbw2) (Entered: 10/16/2019)
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