Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the New York Times Company failed to show it was entitled to expedited processing solely on the basis that the Defense Health Agency and the Department of Health and Human Services did not respond to its requests within the 20 business-day statutory time limit. Both requests asked for de-identified data on the federal government's distribution of COVID-19 vaccines. Both agencies acknowledged receipt of the requests, granted the New York Times' fee waiver request but denied its request for expedited processing, concluding that the records were not time-sensitive under the circumstances. The New York Times argued that it was entitled to immediate production of responsive records once the agency failed to respond within the 20-day time limit. However, Howell pointed out that "the cited 'failure' by defendant does not trigger entitlement to production of responsive records, much less immediate production of the enormous data sets plaintiff's FOIA requests seek." Howell found that both agencies had shown that exceptional circumstances applied here, justifying the need to take more time to respond. She indicated that "lapse of this statutory period without an agency's 'determination and the reasons therefor,' gives plaintiff precisely what it has now obtained, which is to be 'deemed to have exhausted his administrative remedies,' and nothing more, and certainly not entitlement to production of the requested records. . ." Howell also rejected the New York Times' claim that it would suffer irreparable harm if its requests were not processed immediately. But Howell noted that "while attention-grabbing, these purported harms to oversight, vaccination hesitancy and equitable vaccine distribution, which are all important to public health generally, are all premised on theoretical injuries, with no assurance that the remedy for these cited public health ills is production of the datasets requested in plaintiff's FOIA requests." She added that "as serious as the harms named by plaintiff are, they are not sufficiently certain, concrete or imminent to amount to the requisite irreparable harm necessary for extraordinary injunctive relief." Finding that the balance of equities did not favor expedited processing for the New York Times' FOIA requests, Howell emphasized the downside for other FOIA requesters. She observed that "hundreds of individuals and organizations await the results of pending requests, filed ahead of plaintiff's requests, and also seek information relating to the COVID pandemic. These third parties would almost certainly face additional delays if defendants were forced to accommodate plaintiff's complex requests for what could be enormous data sets."
Issues: Expedited processing - Time limit

Date Filed	Doc #	Docket Text
2021-03-03	1	COMPLAINT against All Defendants Defense Health Agency and Department of Health and Human Services ( Filing fee $ 402 receipt number ADCDC-8272179) filed by The New York Times Company. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Summons to Defense Health Agency, # 3 Summons Summons to Department of Health and Human Services)(McCraw, David) (Entered: 03/03/2021)
2021-03-03	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by The New York Times Company (McCraw, David) (Entered: 03/03/2021)
2021-03-03	3	NOTICE of Appearance by Dana R. Green on behalf of The New York Times Company (Green, Dana) (Entered: 03/03/2021)
2021-03-04		Case Assigned to Chief Judge Beryl A. Howell. (adh, ) (Entered: 03/04/2021)
2021-03-04	4	SUMMONS (2) Issued Electronically as to DEFENSE HEALTH AGENCY, DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachment: # 1 Notice and Consent)(zsb) (Entered: 03/04/2021)
2021-03-04	5	STANDING ORDER. Signed by Chief Judge Beryl A. Howell on March 4, 2021. (lcbah2) (Entered: 03/04/2021)
2021-03-04	6	CERTIFICATE OF SERVICE by NEW YORK TIMES COMPANY for Summons and Complaint . (McCraw, David) (Entered: 03/04/2021)
2021-03-08		NOTICE OF ERROR re 6 Certificate of Service; emailed to mccraw@nytimes.com, cc'd 2 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect event used, 2. FYI: Please refile using correct Summons Returned Executed Event. (zeg, ) (Entered: 03/08/2021)
2021-03-11	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/4/2021. Answer due for ALL FEDERAL DEFENDANTS by 4/3/2021. (McCraw, David) (Entered: 03/11/2021)
2021-03-11	8	MOTION for Preliminary Injunction by NEW YORK TIMES COMPANY. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(McCraw, David) (Entered: 03/11/2021)
2021-03-11	9	AFFIDAVIT re 8 MOTION for Preliminary Injunction Declaration of David E. McCraw by NEW YORK TIMES COMPANY. (Attachments: # 1 Exhibit, # 2 Exhibit)(McCraw, David) (Entered: 03/11/2021)
2021-03-11		MINUTE ORDER (paperless) DIRECTING the parties to confer and jointly submit to the Court, by 2:00 PM on March 12, 2021, a proposed schedule for briefing on plaintiff's 8 Motion for Preliminary Injunction. Signed by Chief Judge Beryl A. Howell on March 11, 2021. (lcbah2) (Entered: 03/11/2021)
2021-03-11	10	CERTIFICATE OF SERVICE by NEW YORK TIMES COMPANY for Plaintiff's Motion for a Preliminary Injunction and accompanying papers . (McCraw, David) (Entered: 03/11/2021)
2021-03-11		Set/Reset Deadlines: Response to Order of the Court due by 2:00 PM on 3/12/2021. (ztg) (Entered: 03/11/2021)
2021-03-12	11	NOTICE of Appearance by Jordan Landrum von Bokern on behalf of DEFENSE HEALTH AGENCY, DEPARTMENT OF HEALTH AND HUMAN SERVICES (von Bokern, Jordan) (Entered: 03/12/2021)
2021-03-12	12	Joint STATUS REPORT regarding proposed schedule for briefing on Plaintiff's Motion for Preliminary Injunction by NEW YORK TIMES COMPANY. (McCraw, David) (Entered: 03/12/2021)
2021-03-15		MINUTE ORDER (paperless) ISSUING, in light of the parties' 12 Joint Status Report, the following SCHEDULING ORDER: (1) by March 25, 2021, defendants shall file their opposition to plaintiff's 8 Motion for Preliminary Injunction; (2) by April 1, 2021, plaintiff shall file its reply in support of its 8 Motion for Preliminary Injunction. Signed by Chief Judge Beryl A. Howell on March 12, 2021. (lcbah2) (Entered: 03/15/2021)
2021-03-15		Set/Reset Deadlines: Opposition to Motion for Preliminary Injunction due by 3/25/2021; reply due by 4/1/2021. (ztg) (Entered: 03/15/2021)
2021-03-25	13	NOTICE of Appearance by Elizabeth J. Shapiro on behalf of All Defendants (Shapiro, Elizabeth) (Entered: 03/25/2021)
2021-03-25	14	RESPONSE re 8 MOTION for Preliminary Injunction filed by DEFENSE HEALTH AGENCY, DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Exhibit A - Declaration of Brandon Gaylord, # 2 Exhibit B - Declaration of John Boyer)(von Bokern, Jordan) (Entered: 03/25/2021)
2021-04-01	15	REPLY to opposition to motion re 8 MOTION for Preliminary Injunction filed by NEW YORK TIMES COMPANY. (McCraw, David) (Entered: 04/01/2021)
2021-04-01	16	AFFIDAVIT re 15 Reply to opposition to Motion Declaration of Alexandra M. Settelmayer by NEW YORK TIMES COMPANY. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McCraw, David) (Entered: 04/01/2021)
2021-04-05	17	ANSWER to Complaint by DEFENSE HEALTH AGENCY, DEPARTMENT OF HEALTH AND HUMAN SERVICES.(von Bokern, Jordan) (Entered: 04/05/2021)
2021-04-08	18	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Alexandra M. Settelmayer, Filing fee $ 100, receipt number ADCDC-8360588. Fee Status: Fee Paid. by NEW YORK TIMES COMPANY. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Green, Dana) (Entered: 04/08/2021)
2021-04-08	19	NOTICE of Correction by DEFENSE HEALTH AGENCY, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Declaration Second Declaration of Brandon Gaylord)(von Bokern, Jordan) (Entered: 04/08/2021)
2021-04-09		MINUTE ORDER (paperless) GRANTING plaintiff's 18 Motion for Admission Pro Hac Vice of Alexandra M. Settelmayer, Esq. Ms. Settelmayer may enter an appearance pro hac vice for the purpose of representing the plaintiff in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions . Signed by Chief Judge Beryl A. How ell on April 8, 2021. (lcbah2) (Entered: 04/09/2021)
2021-04-25	20	ORDER DENYING plaintiff's 8 Motion for a Preliminary Injunction. See Order for further details. Signed by Chief Judge Beryl A. Howell on April 25, 2021. (lcbah2) (Entered: 04/25/2021)
2021-04-25	21	MEMORANDUM OPINION regarding plaintiff's 8 Motion for a Preliminary Injunction. Signed by Chief Judge Beryl A. Howell on April 25, 2021. (lcbah2) (Entered: 04/25/2021)
2021-04-26		Set/Reset Deadlines: Joint Status Report due by 4/30/2021. (ztg) (Entered: 04/26/2021)
2021-04-30	22	Joint STATUS REPORT by DEFENSE HEALTH AGENCY, DEPARTMENT OF HEALTH AND HUMAN SERVICES. (von Bokern, Jordan) (Entered: 04/30/2021)
2021-04-30		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 22 Joint Status Report, the parties to file, by June 1, 2021, a joint status report advising the Court of the status of this matter, whether any disputes remain between the parties and, if so, proposing a schedule to govern further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on April 30, 2021. (lcbah2) (Entered: 04/30/2021)
2021-04-30		Set/Reset Deadlines: Joint Status Report due by 6/1/2021. (ztg) (Entered: 04/30/2021)
2021-05-03	23	NOTICE of Appearance by Alexandra Settelmayer on behalf of NEW YORK TIMES COMPANY (Settelmayer, Alexandra) (Entered: 05/03/2021)
2021-06-01	24	Joint STATUS REPORT by DEFENSE HEALTH AGENCY, DEPARTMENT OF HEALTH AND HUMAN SERVICES. (von Bokern, Jordan) (Entered: 06/01/2021)
2021-06-01		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 24 Joint Status Report, the parties to file, by July 1, 2021, a joint status report advising the Court of the status of this matter, whether any disputes remain between the parties and, if so, proposing a schedule to govern further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on June 1, 2021. (lcbah2) (Entered: 06/01/2021)
2021-06-02		Set/Reset Deadlines: Joint Status Report due by 7/1/2021. (ztg) (Entered: 06/02/2021)
2021-07-01	25	Joint STATUS REPORT by DEFENSE HEALTH AGENCY, DEPARTMENT OF HEALTH AND HUMAN SERVICES. (von Bokern, Jordan) (Entered: 07/01/2021)
2021-07-02		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 25 Joint Status Report, the parties to file, by August 31, 2021, a joint status report advising the Court of the status of this matter, whether any disputes remain between the parties and, if so, proposing a schedule to govern further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on July 1, 2021. (lcbah2) (Entered: 07/02/2021)
2021-07-02		Set/Reset Deadlines: Joint Status Report due by 8/31/2021. (ztg) (Entered: 07/02/2021)
2021-07-02	26	STIPULATION of Dismissal of Defendant Defense Health Agency by NEW YORK TIMES COMPANY. (McCraw, David) (Entered: 07/02/2021)
2021-07-06		MINUTE ORDER (paperless) DISMISSING, upon consideration of the 26 Stipulation of Dismissal filed by defendant Defense Health Agency and plaintiff New York Times, this action, as to Defense Health Agency only, with prejudice. See Fed. R. Civ. P. 41(a)(1)(a)(ii). The Clerk of Court is directed to dismiss Defense Health Agency from this action. Signed by Chief Judge Beryl A. Howell on July 2, 2021. (lcbah2) (Entered: 07/06/2021)
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