Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the Centers for Medicare and Medicaid Services has not shown that it conducted an adequate search for records concerning 36 comments submitted during a proposed rulemaking in 1990 to implement provisions of the Medicare Secondary Payer Act. The final rule was promulgated in 1995 and specified the agency had "received 36 timely letters of comment from employers, insurance companies, law firms, actuarial firms, individuals, associations, and beneficiary rights' organizations" in response to the proposed rule. Davita, Inc. was involved in litigation over the meaning and application of the MSP Act and requested access to the comments submitted on the proposed rule, particularly the 36 comments referenced in the final rule. CMS inadvertently transposed the number for the Federal Register notice when it searched its database for repository records, concluding that the records had been accessioned to the National Archives and Records Administration. After Davita told the agency that it had incorrectly transposed two numbers, the agency conducted a new database search. Using the correct number, CMS determined that the records related to the rulemaking were in Box 14, which was in temporary storage at the Washington National Records Center and had not been accessioned to NARA. CMS manually searched Box 14, but only found records consisting of "draft copies of the proposed rule with internal agency redline edits and comments on them." None of the 36 comments sought by Davita were in Box 14. The agency issued a no records response. Davita asked for access to the contents of Box 14. However, the agency decided that since none of the 36 comments were in the box, it was not responsive to the request. Noting the requirements of the Federal Records Act for agencies to retain a permanent record of a rulemaking, Howell pointed out that "plaintiff has demonstrated that the thirty-six comments should have existed somewhere in the agency's records at the time of the search." She indicated that "when a plaintiff identifies documents not found by the agency, the agency must 'explain those holes in the record.'" She pointed out that "this requirement is not, however, an insurmountable burden for the agency. "After all, particular documents may have been accidently lost or destroyed, or a reasonable and thorough search may have missed them.' Human error of this kind does not defeat the agency's claim for summary judgment, so long as the agency has fulfilled its obligation to carry out an adequate search." As to that burden, Howell observed that "the question is not whether the agency can pinpoint the exact whereabouts of the missing documents, but whether the agency can show that its search is adequate despite its failure to retrieve known records." Howell found that the agency's explanation for its limited search was ultimately adequate. She noted that "in order to fulfill its obligations under FOIA, 'an agency need not move heaven and earth to locate and produce requested records, and this is so even when the sought-after documents are known to have existed and to once been in the agency's possession.' 'Adequacy â€" not perfection â€" is the standard that FOIA sets.'" She indicated that "defendants have met that standard with respect to their search of records in storage by using the appropriate records databases to identity Box 14 and to confirm that no other boxes are associated with the Proposed Rule or the Final Rule and then searching every page within that box. They are not obligated to undertake an untold number of searches of additional warehouse boxes, nor are they obligated, as plaintiff suggests, 'to explain why such a step would not be feasible,' in the absence of any concrete evidence the other warehouse boxes are likely to hold the comments." However, Howell found the agency had not sufficiently explained its searches of other offices and ordered the agency to supplement its declarations to provide more detail. She also rejected Davita's claim that its FOIA request could be read to encompass the records on the draft proposal. Instead, she observed that "here, by requesting 'access to' and 'copies of' the thirty-six comments made on the Proposed Rule, the FOIA Request specifically sought only the comments themselves. The plain language of the FOIA Request thus unambiguously states that this discrete set of thirty-six comments are the only responsive records."
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2020-07-02	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number ADCDC-7294193) filed by DAVITA INC.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Civil Cover Sheet, # 6 Summons)(Callahan, Samuel) (Entered: 07/02/2020)
2020-07-02	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by DAVITA INC. (Callahan, Samuel) (Entered: 07/02/2020)
2020-07-02		Case Assigned to Chief Judge Beryl A. Howell. (adh, ) (Entered: 07/02/2020)
2020-07-02	3	SUMMONS (4) Issued Electronically as to CENTERS FOR MEDICARE & MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 07/02/2020)
2020-07-02	4	STANDING ORDER. Signed by Chief Judge Beryl A. Howell on July 2, 2020. (lcbah3) (Entered: 07/02/2020)
2020-08-04	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTERS FOR MEDICARE & MEDICAID SERVICES served on 7/6/2020; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES served on 7/7/2020 (Attachments: # 1 Affidavit Affidavit of Service, # 2 Exhibit A, # 3 Exhibit B)(Callahan, Samuel) (Entered: 08/04/2020)
2020-08-04	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/8/2020. Answer due for ALL FEDERAL DEFENDANTS by 8/7/2020. (Attachments: # 1 Affidavit Affidavit of Service, # 2 Exhibit A, # 3 Exhibit B)(Callahan, Samuel) (Entered: 08/04/2020)
2020-08-04	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/8/2020. (Attachments: # 1 Affidavit Affidavit of Service, # 2 Exhibit A, # 3 Exhibit B)(Callahan, Samuel) (Entered: 08/04/2020)
2020-08-07	8	ANSWER to Complaint by CENTERS FOR MEDICARE & MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES.(Mussenden, Paul) (Entered: 08/07/2020)
2020-08-21	9	Joint STATUS REPORT by CENTERS FOR MEDICARE & MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES. (Mussenden, Paul) (Entered: 08/21/2020)
2020-08-24		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 9 Joint Status Report, the parties to file, by October 5, 2020, a joint status report advising the Court of (1) the status of defendants' searches, including an estimate of when those searches will be completed; (2) when defendants expect to make a final determination for plaintiff's FOIA request; and (3) a proposed schedule to govern further proceedings. Signed by Chief Judge Beryl A. Howell on August 24, 2020. (lcbah3) (Entered: 08/24/2020)
2020-08-25		Set/Reset Deadlines: Joint Status Report due by 10/5/2020. (zhmc) (Entered: 08/25/2020)
2020-10-05	10	Joint STATUS REPORT (Second) by DAVITA INC.. (Callahan, Samuel) (Entered: 10/05/2020)
2020-10-06		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 10 Joint Status Report, the parties to submit, by November 4, 2020, a joint status report advising the Court of (1) the status of defendants' processing, including whether that processing has been completed and, if not, an estimate of when the processing will be completed; (2) whether defendants have made a final determination for plaintiff's FOIA request and, if not, an estimate of when defendants expect to make a final determination; and (3) a proposed schedule to govern further proceedings. Signed by Chief Judge Beryl A. Howell on October 6, 2020. (lcbah3) (Entered: 10/06/2020)
2020-10-07		Set/Reset Deadlines: Joint Status Report due by 11/4/2020. (ztg) (Entered: 10/07/2020)
2020-11-04	11	Joint STATUS REPORT (Third) by DAVITA INC.. (Callahan, Samuel) (Entered: 11/04/2020)
2020-11-05		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 11 Joint Status Report, the parties to file, by November 25, 2020, a joint status report advising the Court whether any disputes remain between the parties, and if so, proposing a schedule for further proceedings. Signed by Chief Judge Beryl A. Howell on November 5, 2020. (lcbah3) (Entered: 11/05/2020)
2020-11-06		Set/Reset Deadlines: Joint Status Report due by 11/25/2020. (ztg) (Entered: 11/06/2020)
2020-11-25	12	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES. (Mussenden, Paul) (Entered: 11/25/2020)
2020-11-30		MINUTE ORDER (paperless) ISSUING, in light of the parties' 12 Joint Status Report, the following SCHEDULING ORDER to govern the timing of further proceedings in this matter: (1) by January 14, 2021, defendants shall file their motion for summary judgment; (2) by January 21, 2021, plaintiff shall file its combined opposition and cross-motion for summary judgment; (3) by February 10, 2021, defendants shall file their combined opposition and reply; and (4) by February 17, 2021, plaintiff shall file its reply. Signed by Chief Judge Beryl A. Howell on November 30, 2020. (lcbah3) (Entered: 11/30/2020)
2020-11-30		Set/Reset Deadlines: Summary Judgment motion due by 1/14/2021; cross-motion and opposition to motion for summary judgment due by 1/21/2021; opposition to cross-motion and reply to opposition to motion for summary judgment due by 2/10/2021; reply to opposition to cross-motion due by 2/17/2021. (ztg) (Entered: 11/30/2020)
2020-12-20	13	NOTICE OF SUBSTITUTION OF COUNSEL by Thomas Duffey on behalf of All Defendants Substituting for attorney Paul A. Mussenden (Duffey, Thomas) (Entered: 12/20/2020)
2021-01-14	14	MOTION for Summary Judgment by CENTERS FOR MEDICARE & MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES (Attachments: # 1 Statement of Facts, # 2 Declaration Exhibit A to Statment of Facts, # 3 Exhibit Exhibits 1-5 to Gilmore Declaration, # 4 Memorandum in Support with proposed order)(Duffey, Thomas) (Entered: 01/14/2021)
2021-01-21	15	NOTICE of Appearance by John P Elwood on behalf of DAVITA INC. (Elwood, John) (Entered: 01/21/2021)
2021-01-21	16	NOTICE of Appearance by Andrew Tutt on behalf of DAVITA INC. (Tutt, Andrew) (Entered: 01/21/2021)
2021-01-21	17	Cross MOTION for Summary Judgment by DAVITA INC.. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Text of Proposed Order)(Elwood, John) (Entered: 01/21/2021)
2021-01-21	18	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by DAVITA INC.. (Attachments: # 1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Elwood, John) (Entered: 01/21/2021)
2021-02-10	19	Memorandum in opposition to re 17 Cross MOTION for Summary Judgment filed by CENTERS FOR MEDICARE & MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES. (Attachments: # 1 Declaration Gilmore Supplemental Declaration, # 2 Statement of Facts Defendants' Response to Plaintiff's Statement of Facts, # 3 Statement of Facts Defendants' Supplemental Statement of Facts)(Duffey, Thomas) (Entered: 02/10/2021)
2021-02-10	20	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by CENTERS FOR MEDICARE & MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES. (View Docket Entry 19 to view document). (eg) (Entered: 02/11/2021)
2021-02-17	21	REPLY to opposition to motion re 17 Cross MOTION for Summary Judgment filed by DAVITA INC.. (Attachments: # 1 Statement of Facts)(Elwood, John) (Entered: 02/17/2021)
2021-03-16	22	ORDER DENYING the defendants' 14 Motion for Summary Judgment and DENYING the plaintiff's 17 Cross-Motion for Summary Judgment. See Order for details. Signed by Chief Judge Beryl A. Howell on March 16, 2021. (lcbah3) (Entered: 03/16/2021)
2021-03-16	23	MEMORANDUM OPINION regarding the defendants' 14 Motion for Summary Judgment and the plaintiff's 17 Cross-Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on March 16, 2021. (lcbah3) (Entered: 03/16/2021)
2021-03-16		Set/Reset Deadlines: Joint Status Report due by 4/16/2021. (ztg) (Entered: 03/16/2021)
2021-04-16	24	Joint STATUS REPORT by DAVITA INC.. (Attachments: # 1 Exhibit A - Second Supplemental Declaration)(Elwood, John) (Entered: 04/16/2021)
2021-04-19		MINUTE ORDER (paperless) ISSUING, in light of the parties' 24 Joint Status Report, the following SCHEDULING ORDER to govern the timing of further proceedings in this matter: (1) by May 17, 2021, defendants shall submit a supplemental brief, not to exceed 10 pages, in support of their motion for summary judgment; (2) by May 31, 2021, plaintiff shall submit a combined supplemental brief, not to exceed ten pages, opposing defendants' motion for summary judgment and in support of its cross-motion for summary judgment; (3) by June 7, 2021, defendants shall submit a combined supplemental opposition to plaintiff's cross-motion for summary judgment and reply, not to exceed ten pages; and (4) by June 14, 2021, plaintiff shall submit its supplemental reply, not to exceed five pages. Signed by Chief Judge Beryl A. Howell on April 19, 2021. (lcbah3) (Entered: 04/19/2021)
2021-04-20		Set/Reset Deadlines: Defendants' supplemental brief due by 5/17/2021; plaintiff's combined supplemental brief due by 5/31/2021; defendants' combined supplemental opposition to cross-motion for summary judgment and reply due by 6/7/2021; plaintiff's supplemental reply due by 6/14/2021. (ztg) (Entered: 04/20/2021)
2021-05-13	25	Consent MOTION for Extension of Time to File Supplemental Brief by CENTERS FOR MEDICARE & MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES. (Duffey, Thomas) (Entered: 05/13/2021)
2021-05-14		MINUTE ORDER (paperless) GRANTING the defendants' 25 Consent Motion for Extension of Time to File Supplemental Brief and MODIFYING the Scheduling Order previously issued in this case, see Min. Order (Apr. 19, 2021), as follows: (1) by June 7, 2021, defendants shall submit a supplemental brief, not to exceed 10 pages, in support of their motion for summary judgment; (2) by June 21, 2021, plaintiff shall submit a combined supplemental brief, not to exceed ten pages, opposing defendants' motion for summary judgment and in support of its cross-motion for summary judgment; (3) by June 28, 2021, defendants shall submit a combined supplemental opposition to plaintiff's cross-motion for summary judgment and reply, not to exceed ten pages; and (4) by July 5, 2021, plaintiff shall submit its supplemental reply, not to exceed five pages. Signed by Chief Judge Beryl A. Howell on May 14, 2021. (lcbah3) (Entered: 05/14/2021)
2021-05-17		Set/Reset Deadlines: Summary judgment motion due by 6/7/2021; cross-motion/opposition to motion for summary judgment due by 6/21/2021; opposition to cross-motion/reply to opposition to motion for summary judgment due by 6/28/2021; reply to opposition to cross-motion due by 7/5/2021. (ztg) (Entered: 05/17/2021)
2021-06-07	26	Supplemental MOTION for Summary Judgment by CENTERS FOR MEDICARE & MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES. (Attachments: # 1 Declaration Exhibt A Amended Second Supplemental Declaration of Hugh Gilmore, # 2 Exhibit Exhibit B Comments Summary)(Duffey, Thomas) (Entered: 06/07/2021)
2021-06-21	27	STIPULATION of Dismissal (Joint) by DAVITA INC.. (Elwood, John) (Entered: 06/21/2021)
2021-06-22		MINUTE ORDER (paperless) DISMISSING this matter, without prejudice, in light of the parties' 27 Joint Stipulation of Dismissal, see Fed. R. Civ. P. 41(a)(1)(A)(ii), and DENYING AS MOOT defendants' 26 Supplemental Motion for Summary Judgment. The Clerk of the Court is directed to close this case. Signed by Chief Judge Beryl A. Howell on June 22, 2021. (lcbah3) (Entered: 06/22/2021)
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