Case Detail

FOIA Project Annotation: Judge Reggie Walton has ruled that the Center for Medicare Advocacy is entitled to a fee waiver for its request concerning the use of video-conferencing for Medicare administrative law hearings. The Center requested records from the Department of Health and Human Services, which located about 8800 pages, withholding 7720 pages entirely under Exemption 5 (privileges). The Social Security Administration also found responsive records and released 57 pages in full, 15 pages in part, and withheld 149 pages, also invoking Exemption 5. Walton found that agencies had properly relied on both the deliberative process privilege and the attorney-client privilege in withholding the records. However, he rejected HHS's decision denying a fee waiver. The agency had concluded that most of the information disclosed was publicly available and that the Center had not shown how it would disseminate information. Walton indicated that the Center's request clearly concerned government activities or operations and noted that "this conclusion is not altered by the fact that some of the released documents were brochures and pamphlets submitted by private parties seeking to do business with the federal government. . .The material. . .provides insight on the options and factors under consideration by the agency as it designed and implemented its new hearings system." He then observed that "the plaintiff's fee waiver request should have been evaluated based on the potential contribution the requested information would have on the public's understanding, and not on the fact that some of the documents were publicly available." Finding that the Center was a non-profit organization that had the means to disseminate the information appropriately, Walton concluded that "since the plaintiff's request demonstrates with reasonable specificity that disclosure was in the public interest and not for a commercial interest of the plaintiff, the defendant should have granted the plaintiff's fee waiver request."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Public Interest Fee Waiver - Shed light on government activities

Date Filed	Doc #	Docket Text
2005-11-23	1	COMPLAINT against UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Filing fee $ 250) filed by CENTER FOR MEDICARE ADVOCACY INC.(td, ) (Entered: 11/30/2005)
2005-11-23	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CENTER FOR MEDICARE ADVOCACY INC (td, ) (Entered: 11/30/2005)
2005-11-23		SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 11/30/2005)
2005-12-19	3	NOTICE of Appearance by Graham L. Barron on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Barron, Graham) (Entered: 12/19/2005)
2005-12-22	4	Unopposed MOTION for Extension of Time to File Answer by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order)(Barron, Graham) (Entered: 12/22/2005)
2005-12-23		MINUTE ORDER granting 4 Defendant's Unopposed Motion for Enlargement of Time. The defendant shall respond to the plaintiff's complaint by January 18, 2006. Signed by Judge Reggie B. Walton on December 23, 2005. (lcrbw3, ) (Entered: 12/23/2005)
2006-01-10	5	SUMMONS Returned Executed by CENTER FOR MEDICARE ADVOCACY INC. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 11/23/2005, answer due 1/18/2006. (Nemore, Patricia) (Entered: 01/10/2006)
2006-01-18	6	ANSWER to Complaint by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES.(Barron, Graham) (Entered: 01/18/2006)
2006-02-08	7	NOTICE of Change of Address by Graham L. Barron (Barron, Graham) (Entered: 02/08/2006)
2006-04-13	8	MOTION for Permanent Injunction Motion for Injunction by CENTER FOR MEDICARE ADVOCACY INC. (Nemore, Patricia) (Entered: 04/13/2006)
2006-04-13	9	ADDITIONAL ATTACHMENT by CENTER FOR MEDICARE ADVOCACY INC 8 MOTION for Permanent Injunction Motion for Injunction filed by CENTER FOR MEDICARE ADVOCACY INC,. (Attachments: # 1 Statement of Facts in support of Injunction# 2 Text of Proposed Order granting injunction# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I# 12 Exhibit J# 13 Exhibit K# 14 Exhibit L)(Nemore, Patricia) (Entered: 04/13/2006)
2006-04-13	10	ADDITIONAL ATTACHMENT Memorandum in Support of Motion for Injunction by CENTER FOR MEDICARE ADVOCACY INC 8 MOTION for Permanent Injunction Motion for Injunction filed by CENTER FOR MEDICARE ADVOCACY INC,. (Nemore, Patricia) (Entered: 04/13/2006)
2006-04-19	11	ORDER for Initial Scheduling Conference set for 6/20/2006 09:00 AM in Courtroom 6 before Judge Reggie B. Walton. (mpt, ) (Entered: 04/19/2006)
2006-04-19	12	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES. (mpt, ) (Entered: 04/19/2006)
2006-04-26	13	Unopposed MOTION for Extension of Time to File Response/Reply as to 8 MOTION for Permanent Injunction Motion for Injunction by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order)(Barron, Graham) (Entered: 04/26/2006)
2006-04-26		MINUTE ORDER granting 13 Motion for Extension of Time to File Response/Reply. The plaintiff and defendant shall jointly file a report consistent with this Court's 4/19/06 Order by June 13, 2006, which shall include the parties' proposed briefing schedule. Signed by Judge Reggie B. Walton on 4/26/06. (lcrbw1, ) (Entered: 04/26/2006)
2006-06-12	14	MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Barron, Graham) (Entered: 06/12/2006)
2006-06-13	15	ORDERED that defendant shall file its Cross Motion for summary judgement and opposition to Plaintiff's Motion for Injunction on or before 8/28/2006, and it further ORDERED that plaintiff shall file its opposition and reply on or before 9/11/2006; and it is further ORDERED that defendant shall file its reply on or before 9/25/2006; and it is further ORDERED that the Initial Scheduling Conference presently scheduled for 6/20/06 be and it hereby is, cancelled. Signed by Judge Reggie B. Walton on 6/12/06. (mpt, ) (Entered: 06/14/2006)
2006-07-19	16	NOTICE of Appearance by Michael Jeffrey Sherman on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Sherman, Michael) (Entered: 07/19/2006)
2006-07-19	17	NOTICE OF WITHDRAWAL OF APPEARANCE as to UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. Attorney Graham L. Barron terminated. (Barron, Graham) (Entered: 07/19/2006)
2006-08-23	18	Unopposed MOTION for Extension of Time to file cross-motion for summary judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 )(Sherman, Michael) (Entered: 08/23/2006)
2006-08-25		MINUTE ORDER granting 18 defendant's Motion for Extension of Time. The defendant shall file its cross-motion for summary judgment by September 12, 2006. The plaintiff shall file its opposition to the defendant's motion by October 3, 2006. The defendant shall file its reply by October 17, 2006. Signed by Judge Reggie B. Walton on 8/25/06. (lcrbw2) (Entered: 08/25/2006)
2006-09-12	19	Cross MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order # 2 Affidavit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Affidavit # 7 Affidavit # 8 Exhibit # 9 Exhibit)(Sherman, Michael) (Entered: 09/12/2006)
2006-09-14	20	NOTICE of Filing by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Certificate of Service)(Sherman, Michael) (Entered: 09/14/2006)
2006-09-29	21	MOTION for Extension of Time to File Response/Reply by CENTER FOR MEDICARE ADVOCACY INC. (Nemore, Patricia) (Entered: 09/29/2006)
2006-09-29	22	ADDITIONAL ATTACHMENT by CENTER FOR MEDICARE ADVOCACY INC 21 MOTION for Extension of Time to File Response/Reply filed by CENTER FOR MEDICARE ADVOCACY INC,. (Nemore, Patricia) (Entered: 09/29/2006)
2006-10-03		MINUTE ORDER granting 21 Motion for Extension of Time to File Response/Reply. The plaintiff shall file a response to the defendant's Cross Motion for Summary Judgment and reply in support of its Motion for Injunction by October 10, 2006. Signed by Judge Reggie B. Walton on 10/03/06. (lcrbw2, ) (Entered: 10/03/2006)
2006-10-03		Set/Reset Deadlines: Responses to cross motion for summary judgement and reply in support of motion for injunction due by 10/10/2006 (mpt, ) (Entered: 10/04/2006)
2006-10-10	23	Memorandum in opposition to re 19 Cross MOTION for Summary Judgment filed by CENTER FOR MEDICARE ADVOCACY INC. (Nemore, Patricia) (Entered: 10/10/2006)
2006-10-18	24	Unopposed MOTION for Extension of Time to File Response/Reply by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order)(Sherman, Michael) (Entered: 10/18/2006)
2006-10-20		MINUTE ORDER granting 24 Motion for Extension of Time to File Response/Reply. The defendant shall file its reply to the plaintiff's opposition to the defendant's cross-motion for summary judgment by October 31, 2006. Signed by Judge Reggie B. Walton on 10/20/06. (lcrbw2, ) (Entered: 10/20/2006)
2006-10-20		Set/Reset Deadlines: Reply to opposition to cross-motion for summary judgement due by 10/31/2006. (mpt, ) (Entered: 10/20/2006)
2006-10-31	25	REPLY to opposition to motion re 24 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiff's Opposition to Defendant's Cross-Motion for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Affidavit # 2 Exhibit Exhibit A to Second Mantoan Declaration# 3 Exhibit Exhibit B to Second Mantoan Declaration# 4 Exhibit Exhibit C to Second Mantoan Declaration# 5 Exhibit Exhibit D to Second Mantoan Declaration# 6 Affidavit)(Sherman, Michael) (Entered: 10/31/2006)
2008-03-28	26	ORDER granting in part and denying in part 8 Motion for Permanent Injunction; granting in part and denying in part 19 Motion for Summary Judgment. Signed by Judge Reggie B. Walton on 3/28/06. (lcrbw2) (Entered: 03/28/2008)
2008-09-17	27	AMENDED ORDER. Granting the plaintiffs motion for a permanent injunction as to its fee waiver request and denying the plaintiff's request for a permanent injunction requiring the defendant to produce the challenged documents; granting the defendants cross-motion for summary judgment as to all the challenged documents pursuant to Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552 (2000); denying the defendant's cross motion for summary judgment as to the plaintiffs request for a fee waiver; and ordering that the defendant shall grant the plaintiff a public interest fee waiver. Signed by Judge Reggie B. Walton on 9/17/08. (lcrbw2) (Entered: 09/17/2008)
2008-09-17	28	MEMORANDUM AND OPINION as to the Court's Order granting the plaintiffs motion for a permanent injunction as to its fee waiver request and denying the plaintiff's request for a permanent injunction requiring the defendant to produce the challenged documents; granting the defendants cross-motion for summary judgment as to all the challenged documents pursuant to Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552 (2000); denying the defendant's cross motion for summary judgment as to the plaintiffs request for a fee waiver; and ordering that the defendant shall grant the plaintiff a public interest fee waiver. Signed by Judge Reggie B. Walton on 9/17/08. (lcrbw2) (Entered: 09/17/2008)
2008-11-17	29	ENTERED IN ERROR.....NOTICE OF APPEAL as to 27 Order,, by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. Fee Status: No Fee Paid. Parties have been notified. (Morgan, Keith) Modified on 11/18/2008 (td, ). (Entered: 11/17/2008)
2008-11-18		NOTICE OF ERROR re 29 Notice of Appeal; emailed to keith.morgan@usdoj.gov, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. Attorney status is provisional. Must be refiled by one of the attorneys listed on the docket. (td, ) (Entered: 11/18/2008)
2008-11-18		NOTICE OF CORRECTED DOCKET ENTRY: re 29 Notice of Appeal was entered in error and counsel was instructed to refile said pleading. Document must be signed by one of the attoneys listed on the docket. Attorney Keith Morgan must renew his membership. (td, ) (Entered: 11/18/2008)
2008-11-24	30	MOTION for Leave to File a Fee Motion by CENTER FOR MEDICARE ADVOCACY INC (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Nemore, Patricia) (Entered: 11/24/2008)
2008-12-08	31	Memorandum in opposition to re 30 MOTION for Leave to File a Fee Motion filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order)(Sherman, Michael) (Entered: 12/08/2008)
2008-12-16	32	REPLY MEMORANDUM re 30 MOTION for Leave to File a Fee Motion filed by CENTER FOR MEDICARE ADVOCACY INC by CENTER FOR MEDICARE ADVOCACY INC. (Nemore, Patricia) Modified on 12/17/2008 (nmw, ). (Entered: 12/16/2008)
2009-01-06	33	ORDER denying 30 Motion for Leave to File. The plaintiff's motion for leave to file a fee motion is denied. Signed by Judge Reggie B. Walton on 12/06/09. (lcrbw2) (Entered: 01/06/2009)
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