Case Detail

FOIA Project Annotation: Judge Gladys Kessler has ruled that neither Consumers' Checkbook nor the Center for Medicare and Medicaid Services have yet shown that they are entitled to summary judgment on the question of whether Qualified Health Plans offered by insurers participating in the Federally-Facilitated Marketplace created by the Affordable Care Act should or should not be disclosed before the Open Enrollment Period. In Consumer Checkbook's continuing efforts to gain access to much of the plans' benefits data after the data is required to be submitted but before it is made public as part of Open Enrollment, the organization failed to persuade Kessler that the records were not protected by Exemption 4 (confidential business information). But Kessler was equally unimpressed by the agency's claims that disclosure of such information before open enrollment began would likely cause competitive harm if disclosed. Under the ACA, participating insurers were required to submit their initial 2015 QHP applications by June 27, 2014. After that time, insurers could not change their proposed service areas or add new insurance plans, but could amend their data. September 4, 2014 was the deadline for submission of final QHP application data. After that time, insurers could make changes only with the approval of CMS or the state, if relevant. In October 2014, the government provided insurers with final certifications of their ability to participate in the FFM. Insurers were then required to sign FFM agreements before the beginning of the Open Enrollment Period on November 15, 2015. The government does not consider data related to plan offerings to be final until an agreement is signed and the plan is confirmed, a process that usually takes place about two weeks before Open Enrollment. In response to Consumer Checkbook's requests for the data, the agency argued it was protected by Exemption 4 until it was made public during Open Enrollment. Consumer's Checkbook, in contrast, argued that once the applications were received there was very little chance that insurers' would change their plans and the data should be disclosed then. The agency initially insisted that because it had previously provided Consumer's Checkbook the 2014 data the case should be dismissed as moot. Kessler noted that "plaintiff intends to request substantially the same information from Defendants every year and has requested an injunction barring the Government from withholding it under Exemption 4." She added that "the Government's argument rests entirely upon the presumption that it will prevail on the merits, and thus, puts the cart before the horse." The government's primary contention was that "release of the requested plan benefits data at any time before the beginning of the Open Enrollment Period will cause participating insurers to suffer competitive harm. The agency pointed to 78 letters it received from insurers who had been given pre-disclosure notification letters asking for them to comment on the likelihood of competitive harm from release of their data as evidence that competition existed. After reviewing the letters, Kessler indicated she did not give them much credence. She observed that 'the Government has put forth no reliable evidence of actual competition between insurers participating in the FFM. The authors of the 78 letters HHS relies on were sent a carefully-worded letter presenting HHS' legal interpretation of Exemption 4 and asking whether each insurer's application information for a given plan year may be protected by Exemption 4. Therefore, it is not surprising that many of the letters describing the potential for competitive harm agree with the Government's position." The government also relied on the 78 letters to show that there was competition between insurers that offered FFM plans and insurers that offered plans not available through the FFM. Kessler explained that the letters, rather than describing actual competition, "could just as easily suggest hypothetical or potential competition rather than actual competition." She observed that the government "has not established that FFM-participating insurers face actual competition from any source." Turning to Consumer Checkbook's arguments for disclosure, after having found the government's case so flimsy, Kessler found little support on that side either. She pointed out that viewed "in the light most favorable to the Government, one could conclude that there is actual competition from the letters' description of competitive harm that would arise from pre-Open Enrollment disclosure of plan benefits data. Moreover, Plaintiff has not countered the government's evidence (weak as it is) of actual competition with any documentary evidence of its own." The government suggested several forms of competitive harm would arise if the data was prematurely disclosed. These included allowing insurers to undercut their competitors, discouraging plan innovation, and providing conflicting and confusing data to the public. Consumer's Checkbook contended that the issue of undercutting was exaggerated because the agency had publicly stated that more than 95 percent of policies would be renewed unchanged. But the agency told Kessler that this prediction was based on the status quo and disclosure of data at an earlier stage might prompt insurers to change their offerings. Kessler observed that "whether one concludes that early release of the requested data could lead to undercutting depends on the light in which the evidence is examined. . .The record presented by the Parties is so incomplete and confusing on the issue of undercutting, that it alone precludes granting either Motion for Summary Judgment on this issue." As to harm to innovation, Kessler noted that "Plaintiff is correct that the ACA 'has made it more difficult for [insurers] to compete on the basis of plan benefit design.'" As to creating confusion through the premature release of data, Kessler pointed out that "[the government] has failed to show that the harm it claims will arise from consumer confusion would be caused by competitors' use of proprietary information as Exemption 4 requires." Kessler also considered the effect disclosure might have on program effectiveness, known as the impairment prong in Exemption 4 case law. Here, the government primarily relied on its consumer confusion argument. Unconvinced, Kessler pointed out that "the Government does not explain why public release of data after the beginning of the Open Enrollment Period would not be equally confusing to consumers given that such data is 'regularly' updated after its release." She observed that applicants had to go through either the agency or an insurance professional when purchasing a policy. As a result, she noted that "the Government offers no reason why any confusion would not be cured upon a consumer's first interaction with the FFM itself." Declining to grant summary judgment to either party, Kessler warned the parties that "any future filings must contain clearer presentation of the facts underlying this case."
Issues: Exemption 4 - Competitive harm, Exemption 4 - Impairment of agency

Date Filed	Doc #	Docket Text
2014-03-25	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-3663311) filed by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(Brown, Caroline) (Entered: 03/25/2014)
2014-03-25	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Brown, Caroline) (Entered: 03/25/2014)
2014-03-25	3	ELECTRONIC SUMMONS (4) Issued as to CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(sth, ) (Entered: 03/25/2014)
2014-03-25		Case Assigned to Judge Gladys Kessler. (sth, ) (Entered: 03/26/2014)
2014-04-15	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/1/2014. Answer due for ALL FEDERAL DEFENDANTS by 5/1/2014. (Attachments: # 1 Exhibit)(Brown, Caroline) (Entered: 04/15/2014)
2014-04-15	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/1/2014. (Attachments: # 1 Exhibit)(Brown, Caroline) (Entered: 04/15/2014)
2014-04-15	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 3/31/2014 (Attachments: # 1 Exhibit)(Brown, Caroline) (Entered: 04/15/2014)
2014-04-15	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTERS FOR MEDICARE AND MEDICAID SERVICES served on 3/31/2014 (Attachments: # 1 Exhibit)(Brown, Caroline) (Entered: 04/15/2014)
2014-04-18	8	NOTICE of Appearance by Paige M. Jennings on behalf of CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Jennings, Paige) (Entered: 04/18/2014)
2014-05-01	9	NOTICE of Appearance by Benton Gregory Peterson on behalf of CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Peterson, Benton) (Entered: 05/01/2014)
2014-05-01	10	Unopposed MOTION for Extension of Time to File Answer by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 05/01/2014)
2014-05-02	11	MOTION for Preliminary Injunction by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Affidavit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Jennings, Paige) (Entered: 05/02/2014)
2014-05-05		MINUTE ORDER granting 10 Defendants' Motion for Enlargement of Time to Answer or Otherwise Respond to Complaint; Defendants shall have up to and including May 16, 2014, to file a responsive pleading in this matter. Signed by Judge Gladys Kessler on 05/05/14. (lcgk2, ) (Entered: 05/05/2014)
2014-05-05	12	ORDER: Defendants shall file their Opposition to the Motion for Preliminary Injunction no later than May 9, 2014; Plaintiff shall file its Reply, if any, no later than May 13, 2014 (see Order for details). Signed by Judge Gladys Kessler on 05/05/2014. (lcgk2, ) (Entered: 05/05/2014)
2014-05-05		Set/Reset Deadlines: Answer due by 5/16/2014. (zmm, ) (Entered: 05/05/2014)
2014-05-05		Set/Reset Deadlines: Response to motion for preliminary injunction due by 5/9/2014 Reply due by 5/13/2014. (zmm, ) (Entered: 05/05/2014)
2014-05-05		NOTICE OF ERROR re 11 Motion for Preliminary Injunction; emailed to pjennings@cov.com, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. FYI for future filings, the ECF filer and signature on the document must match. (td, ) (Entered: 05/05/2014)
2014-05-09	13	Memorandum in opposition to re 11 MOTION for Preliminary Injunction filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Declaration Clybourn, # 2 Exhibit, # 3 Exhibit)(Peterson, Benton) (Entered: 05/09/2014)
2014-05-13	14	REPLY to opposition to motion re 11 MOTION for Preliminary Injunction filed by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Jennings, Paige) (Entered: 05/13/2014)
2014-05-15	15	ORDER that the Parties shall appear for a Motion Hearing on Tuesday, May 20, 2014, at 10:30 a.m.; the parties are to focus their arguments on the "nuts and bolts" of what information is, arguably, easily retrievable by the Government, and the Government's strong opposition to that position; each Party shall have 15 minutes to present their arguments. Signed by Judge Gladys Kessler on 5/15/14. (CL, ) (Entered: 05/15/2014)
2014-05-15		Set/Reset Hearings: Motion Hearing set for 5/20/2014 10:30 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 05/15/2014)
2014-05-16	16	ANSWER to Complaint by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES.(Peterson, Benton) (Entered: 05/16/2014)
2014-05-20		Minute Entry for proceedings held before Judge Gladys Kessler: Motion Hearing held on 5/20/2014 re 11 MOTION for Preliminary Injunction filed by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK, (order forthcoming). The Government shall file a written Status Report by 6/25/2014; no extensions of time will be granted. A Status Conference is scheduled for 6/27/2014 at 10:00 AM in Courtroom 26A before Judge Gladys Kessler. (Court Reporter Chantal Geneus.) (tg, ) (Entered: 05/20/2014)
2014-05-20	17	ORDER denying 11 Plaintiff's Motion for Preliminary Injunction; Defendants shall file a detailed, written Status Report on the information discussed at the hearing no later than June 25, 2014; no extensions of time for this Status Report will be granted; on June 27, 2014, at 10:00 a.m., the Parties shall appear for a Status Conference to discuss Defendants' Status Report and the next steps; this case shall be referred to Magistrate Judge Facciola for mediation related to the issues discussed at the hearing. Signed by Judge Gladys Kessler on 5/20/14. (CL, ) (Entered: 05/20/2014)
2014-05-20		Set/Reset Deadlines/Hearings: Status Report due by 6/25/2014. Status Conference set for 6/27/2014 10:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 05/20/2014)
2014-06-16	18	CASE DIRECTLY REFERRED to Magistrate Judge John M. Facciola for Mediation. (md, ) (Entered: 06/16/2014)
2014-06-17		MINUTE ORDER: The Status Conference now set for June 27, 2014, is hereby rescheduled for July 1, 2014, at 2:00 p.m. Signed by Judge Gladys Kessler on 6/17/14. (CL, ) (Entered: 06/17/2014)
2014-06-17		Set/Reset Hearings: Status Conference set for 7/1/2014 02:00 PM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 06/17/2014)
2014-06-17		Set/Reset Hearings: Settlement Conference set for 7/2/2014 at 02:00 PM in Chambers before Magistrate Judge John M. Facciola. (SP, ) (Entered: 06/17/2014)
2014-06-17	19	ORDER re referral to Judge Facciola for settlement. Signed by Magistrate Judge John M. Facciola on 6/17/14. (SP, ) (Entered: 06/17/2014)
2014-06-25	20	STATUS REPORT by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Peterson, Benton) (Entered: 06/25/2014)
2014-06-26		Set/Reset Hearings: Settlement Conference originally set for 7/2/2014 at 2:00 PM has been moved to 03:00 PM in Chambers before Magistrate Judge John M. Facciola. (SP, ) (Entered: 06/26/2014)
2014-07-01		Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 7/1/2014. Final Status Report due by 7/29/2014. (Court Reporter: Scott Wallace) (tth) (Entered: 07/01/2014)
2014-07-01	21	ORDER that the Parties shall submit a Joint Status Report no later than July 29, 2014. Signed by Judge Gladys Kessler on 7/1/14. (CL, ) (Entered: 07/01/2014)
2014-07-01		Set/Reset Deadlines: Joint Status Report due by 7/29/2014 (CL, ). (Entered: 07/01/2014)
2014-07-01		MINUTE ORDER: At the joint request of the parties, the settlement conference set for 7/2/2014 is cancelled. Signed by Magistrate Judge John M. Facciola on 7/1/14. (SP, ) (Entered: 07/01/2014)
2014-07-29	22	STATUS REPORT (Joint) by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Attachments: # 1 Exhibit)(Jennings, Paige) (Entered: 07/29/2014)
2014-07-30	23	ORDER that this case is temporarily stayed; the Parties shall submit a Joint Status Report by Friday, September 5, 2014, informing the Court about their progress and whether a continued stay is necessary. Signed by Judge Gladys Kessler on 7/30/14. (CL, ) (Entered: 07/30/2014)
2014-07-30		Set/Reset Deadlines: Joint Status Report due by 9/5/2014 (CL). (Entered: 07/30/2014)
2014-09-05	25	JOINT STATUS REPORT by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK, CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (znmw, ) (Entered: 09/15/2014)
2014-09-11	24	Joint MOTION for Leave to File Status Report Nunc Pro Tunc by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Status Report)(Jennings, Paige) (Entered: 09/11/2014)
2014-09-12		MINUTE ORDER granting 24 the Parties' Joint Motion for Leave to File Status Report Nunc Pro Tunc; the Status Report attached to the Joint Motion shall be considered filed as of September 5, 2014; a further Status Report is to be filed no later than October 1, 2014. Signed by Judge Gladys Kessler on 9/12/14. (CL, ) (Entered: 09/12/2014)
2014-09-12		Set/Reset Deadlines: Status Report due by 10/1/2014 (CL, ). (Entered: 09/12/2014)
2014-09-15		Set/Reset Deadlines: Status Report due by 10/1/2014. (zmm, ) (Entered: 09/15/2014)
2014-09-15	26	ORDER that the Parties shall file a further Status Report no later than October 1, 2014. Signed by Judge Gladys Kessler on 9/15/14. (CL, ) (Entered: 09/15/2014)
2014-09-15		Set/Reset Deadline: Status Report due by 10/1/2014 (tth) (Entered: 09/15/2014)
2014-10-01	27	STATUS REPORT (JOINT) by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Jennings, Paige) (Entered: 10/01/2014)
2014-10-31	28	MOTION for Summary Judgment by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Jennings, Paige) (Entered: 10/31/2014)
2014-11-17	29	MOTION to Stay re 28 MOTION for Summary Judgment by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Peterson, Benton) (Entered: 11/17/2014)
2014-11-19	30	Memorandum in opposition to re 29 MOTION to Stay re 28 MOTION for Summary Judgment filed by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Jennings, Paige) (Entered: 11/19/2014)
2014-11-20	31	ORDER denying 29 Defendants' Motion to Stay the Briefing Schedule; Defendants shall file their Opposition to Plaintiff's pending Motion no later than December 15, 2014. Signed by Judge Gladys Kessler on 11/20/14. (CL, ) (Entered: 11/20/2014)
2014-11-20		Set/Reset Deadlines: Responses due by 12/15/2014 (CL, ) (Entered: 11/20/2014)
2014-12-15	32	MOTION for Summary Judgment by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Statement of Facts, # 2 Declaration Counihan Declaration, # 3 Declaration Mantoan Declaration, # 4 Exhibit Mantoan Exhibits, # 5 Exhibit Mantoan Exhibits, # 6 Text of Proposed Order)(Peterson, Benton) (Entered: 12/15/2014)
2014-12-15	33	Memorandum in opposition to re 28 MOTION for Summary Judgment filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Statement of Facts, # 2 Declaration Counihan, # 3 Declaration Mantoan, # 4 Exhibit Mantoan Exhibits, # 5 Exhibit Mantoan Exhibits, # 6 Text of Proposed Order)(Peterson, Benton) (Entered: 12/15/2014)
2014-12-16	34	NOTICE of Change of Address by Paige M. Jennings (Jennings, Paige) (Entered: 12/16/2014)
2014-12-16	35	NOTICE of Change of Address by Caroline Montrose Brown (Brown, Caroline) (Entered: 12/16/2014)
2014-12-30	36	Memorandum in opposition to re 32 MOTION for Summary Judgment filed by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Attachments: # 1 Statement of Facts Response to Statement of Facts, # 2 Exhibit, # 3 Exhibit)(Jennings, Paige) (Entered: 12/30/2014)
2014-12-30	37	REPLY to opposition to motion re 28 MOTION for Summary Judgment filed by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Attachments: # 1 Exhibit, # 2 Exhibit)(Jennings, Paige) (Entered: 12/30/2014)
2014-12-30	38	TRANSCRIPT OF MOTION HEARING before Judge Gladys Kessler held on May 20, 2014; Page Numbers: 1-40. Date of Issuance: December 30, 2014. Court Reporter: Chantal M. Geneus, Telephone number (202) 354-3244, Court Reporter Email Address: chantal_geneus@dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov. Redaction Request due 1/20/2015. Redacted Transcript Deadline set for 1/30/2015. Release of Transcript Restriction set for 3/30/2015.(Geneus, Chantal) (Entered: 12/30/2014)
2015-01-07	39	MOTION for Extension of Time to File Response/Reply by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 01/07/2015)
2015-01-08		MINUTE ORDER granting 39 Defendants' Motion for Extension of Time; Defendants shall have up to and including January 20, 2015, in which to file their Reply in support of the Motion for Summary Judgment; please note, there will be NO further extension of time granted for this purpose. Signed by Judge Gladys Kessler on 1/8/15. (CL, ) (Entered: 01/08/2015)
2015-01-08		Set/Reset Deadlines: Replies due by 1/20/2015. (CL) (Entered: 01/08/2015)
2015-01-20	40	Memorandum in opposition to re 28 MOTION for Summary Judgment filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Peterson, Benton) (Entered: 01/20/2015)
2015-01-20	41	REPLY to opposition to motion re 32 MOTION for Summary Judgment filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Peterson, Benton) (Entered: 01/20/2015)
2015-05-22	42	STATUS REPORT by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Jennings, Paige) (Entered: 05/22/2015)
2015-07-01	43	ORDER denying 28 Plaintiff's Motion for Summary Judgment; and denying 32 Defendants' Motion for Summary Judgment; a Status Conference in this case is hereby set for July 15, 2015, at 10:15 a.m. Signed by Judge Gladys Kessler on 7/1/15. (CL) (Entered: 07/01/2015)
2015-07-01	44	MEMORANDUM OPINION to the Order denying the Motions for Summary Judgment. Signed by Judge Gladys Kessler on 7/1/15. (CL) (Entered: 07/01/2015)
2015-07-02		Set/Reset Hearing: A Status Conference is set for 7/15/2015, at 10:15 AM, in Courtroom 26A, before Judge Gladys Kessler. (kt) (Entered: 07/02/2015)
2015-07-08	45	Joint MOTION to Continue Status Conference by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Text of Proposed Order)(Jennings, Paige) (Entered: 07/08/2015)
2015-07-08	46	ORDER granting 45 the Parties' Joint Motion to Continue; the Status Conference now set for Wednesday, July 15, 2015, is hereby rescheduled for July 22, 2015, at 10:00 a.. Signed by Judge Gladys Kessler on 7/8/15. (CL) (Entered: 07/08/2015)
2015-07-08		Set/Reset Hearings: Status Conference set for 7/22/2015 10:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 07/08/2015)
2015-07-21		MINUTE ORDER: Because of an adjustment in the Court's calendar due to a trial, the Status Conference in this case set for Wednesday, July 22, 2015, is hereby cancelled; the Court will reschedule this Status Conference at a later date. Signed by Judge Gladys Kessler on 7/21/15. (CL) (Entered: 07/21/2015)
2015-07-29		MINUTE ORDER: The Status Conference that was previously set for July 22, 2015, is hereby rescheduled for August 5, 2015, at 10:00 a.m. Signed by Judge Gladys Kessler on 7/29/15. (CL) (Entered: 07/29/2015)
2015-07-29		Set/Reset Hearings: Status Conference set for 8/5/2015 10:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 07/29/2015)
2015-07-30	47	STATUS REPORT by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Jennings, Paige) (Entered: 07/30/2015)
2015-08-04	48	ENTERED IN ERROR.....STATUS REPORT and Response to Plaintiff's Status Report by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Peterson, Benton) Modified on 8/5/2015 (znmw). (Entered: 08/04/2015)
2015-08-04	49	ERRATA (Correct Status Report attached) by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Errata)(Peterson, Benton) Modified on 8/5/2015 (znmw). (Entered: 08/04/2015)
2015-08-05		Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 8/5/2015. Further Status Conference set for 8/10/2015, at 11:30 AM in Courtroom 26A before Judge Gladys Kessler. (Court Reporter: Barbara DeVico) (tth) (Entered: 08/05/2015)
2015-08-10		Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 8/10/2015. Order forthcoming. (Court Reporter: Barbara DeVico) (tth) (Entered: 08/10/2015)
2015-08-12	50	STATUS REPORT (Joint) by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 08/12/2015)
2015-08-13	51	ORDER setting a schedule for release of certain records regarding health benefits plans offered through the Federally-Facilitated Marketplace for plan year 2016 only (see Order for details). Signed by Judge Gladys Kessler on 8/13/15. (CL) (Entered: 08/13/2015)
2015-11-10	52	Unopposed MOTION for Extension of Time to by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 11/10/2015)
2015-11-10	53	ORDER granting 52 Defendants' Unopposed Motion for Extension of Time; Defendant shall have up to and including December 4, 2015, in which to file their Motion for Summary Judgment; Plaintiff shall file its Opposition and Cross-Motion on or before January 8, 2016; Defendant will file a Reply and any Opposition on or before February 8, 2016; Plaintiff shall file any Reply to its Cross-Motion on or before March 8, 2016. Signed by Judge Gladys Kessler on 11/10/15. (CL) (Entered: 11/10/2015)
2015-11-10		Set/Reset Deadlines: Cross Motions due by 1/8/2016. Response to Cross Motions due by 2/8/2016. Reply to Cross Motions due by 3/8/2016. Summary Judgment motions due by 12/4/2015. Response to Motion for Summary Judgment due by 1/8/2016. Reply to Motion for Summary Judgment due by 2/8/2016. (CL) (Entered: 11/10/2015)
2015-12-04	54	MOTION for Summary Judgment by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Statement of Facts, # 2 Declaration Sherry Call, # 3 Declaration Sandy Gibson, # 4 Declaration Lourdes Grindal-Miller, # 5 Declaration Hugh Gilmore, # 6 Declaration Douglas Lynch, # 7 Declaration Jack Randolph, # 8 Declaration Paul E. Stordahl, # 9 Declaration Jeffrey Wu, # 10 Text of Proposed Order)(Peterson, Benton) (Entered: 12/04/2015)
2016-01-07	55	MOTION for Extension of Time to File Response/Reply by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Text of Proposed Order)(Jennings, Paige) (Entered: 01/07/2016)
2016-01-07		MINUTE ORDER granting 55 Plaintiff's Motion for Extension of Time; Plaintiff shall have up to and including January 22, 2016, in which to file its Opposition to Defendants' Motion for Summary Judgment and any Cross-Motion; Defendants' shall have up to and including February 22, 2016, in which to file their Reply in Support of their Motion for Summary Judgment and any Opposition if Plaintiff files a Cross-Motion; Plaintiff shall file any Reply on or before March 22, 2016. Signed by Judge Gladys Kessler on 1/7/16. (CL) (Entered: 01/07/2016)
2016-01-07		Set/Reset Deadlines: Cross Motions due by 1/22/2016. Response to Cross Motions due by 2/22/2016. Reply to Cross Motions due by 3/22/2016. Response to Motion for Summary Judgment due by 1/22/2016. Reply to Motion for Summary Judgment due by 2/22/2016. (CL) (Entered: 01/07/2016)
2016-01-21	56	Unopposed MOTION for Extension of Time to File Response/Reply as to 54 MOTION for Summary Judgment by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Text of Proposed Order)(Jennings, Paige) (Entered: 01/21/2016)
2016-01-21		MINUTE ORDER granting 56 Plaintiff's Motion for Extension of Time; Plaintiff shall have up to and including January 25, 2016, in which to file its Opposition to Defendants' Motion for Summary Judgment and any Cross-Motion for Summary Judgment. Signed by Judge Gladys Kessler on 1/21/16. (CL) (Entered: 01/21/2016)
2016-01-21		Set/Reset Deadlines: Cross Motions due by 1/25/2016. Response to Motion for Summary Judgment due by 1/25/2016. (CL) (Entered: 01/21/2016)
2016-01-25	57	Memorandum in opposition to re 54 MOTION for Summary Judgment filed by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Text of Proposed Order)(Jennings, Paige) (Entered: 01/25/2016)
2016-02-16	58	Unopposed MOTION for Extension of Time to File Response/Reply by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 02/16/2016)
2016-02-17	59	ORDER granting 58 Defendants' Unopposed Motion for Extension of Time; Defendants shall have up to and including March 1, 2016, in which to file a Reply in Support of Their Motion for Summary Judgment. Signed by Judge Gladys Kessler on 2/16/16. (CL) (Entered: 02/17/2016)
2016-02-17		Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 3/1/2016. (CL) (Entered: 02/17/2016)
2016-03-01	60	REPLY to opposition to motion re 54 MOTION for Summary Judgment filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Declaration, # 2 Declaration)(Peterson, Benton) (Entered: 03/01/2016)
2016-08-04	61	STATUS REPORT by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Jennings, Paige) (Entered: 08/04/2016)
2016-08-16	62	MEMORANDUM ORDER denying 54 Defendants' Motion for Summary Judgment, declaring that the Government violated FOIA by withholding the requested benefits data after the Lock Down/final Data Submission Deadline; the Government shall release the requested benefits data each year immediately after the Lock Down/final Data Submission Deadlines. Signed by Judge Gladys Kessler on 8/16/16. (Attachments: # 1 Appendix QHP Application Process Timeline) (CL) (Entered: 08/16/2016)
2016-08-19	63	Emergency MOTION to Stay by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 08/19/2016)
2016-08-24	64	STATUS REPORT by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Jennings, Paige) (Entered: 08/24/2016)
2016-08-26	65	MOTION to Stay re 63 Emergency MOTION to Stay by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 08/26/2016)
2016-08-29	66	ORDER granting 63 Defendants' Emergency Motion to Stay Disclosures Ordered on August 16, 2016; and denying as moot 65 Defendants' Emergency Motion to Stay Disclosures Until the Court Rules Upon Defendants' August 19, 2016 Emergency Motion to Stay. Signed by Judge Gladys Kessler on 8/29/16. (CL) (Entered: 08/29/2016)
2016-08-29	67	MOTION for Reconsideration by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Jennings, Paige) (Entered: 08/29/2016)
2016-09-02	68	MOTION to Expedite Briefing Schedule and Consideration by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Text of Proposed Order)(Jennings, Paige) (Entered: 09/02/2016)
2016-09-02	69	Memorandum in opposition to re 67 MOTION for Reconsideration filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 09/02/2016)
2016-09-02	70	REPLY to opposition to motion re 67 MOTION for Reconsideration filed by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK. (Jennings, Paige) (Entered: 09/02/2016)
2016-09-07		MINUTE ORDER: The Parties in this case shall appear for a Status Conference in this case on Thursday, September 8, 2016, at 12:00 noon; there will be no continuance of this Status Conference unless for extenuating circumstances. Signed by Judge Gladys Kessler on 9/7/16. (CL) (Entered: 09/07/2016)
2016-09-07		Set/Reset Hearings: Status Conference set for 9/8/2016 at 12:00 PM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 09/07/2016)
2016-09-08		Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 9/8/2016. 67 MOTION for Reconsideration by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK; heard and denied. (Court Reporter: Janice Dickman) (tth) (Entered: 09/08/2016)
2016-10-14	71	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 62 Order on Motion for Summary Judgment, by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. Fee Status: No Fee Paid. Parties have been notified. (Peterson, Benton) (Entered: 10/14/2016)
2016-10-17	72	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 71 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 10/17/2016)
2016-10-24		USCA Case Number 16-5296 for 71 Notice of Appeal to DC Circuit Court, filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (zrdj) (Entered: 10/24/2016)
2017-08-25	73	TRANSCRIPT OF PROCEEDINGS before Judge Gladys Kessler held on September 8, 2016; Page Numbers: 1-19. Date of Issuance: August 25, 2017. Court Reporter/Transcriber Janice Dickman, Telephone number 202-354-3267, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.<P> NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 9/15/2017. Redacted Transcript Deadline set for 9/25/2017. Release of Transcript Restriction set for 11/23/2017.(Dickman, Janice) (Entered: 08/25/2017)
2017-08-28	74	TRANSCRIPT OF PROCEEDINGS before Judge Gladys Kessler held on 8-10-15; Page Numbers: 1-23. Date of Issuance:8-28-17. Court Reporter/Transcriber Barbara DeVico, Telephone number 202-354-3118, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, PDF or ASCII) may be purchased from the court reporter.<P> NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 9/18/2017. Redacted Transcript Deadline set for 9/28/2017. Release of Transcript Restriction set for 11/26/2017.(DeVico, Barbara) (Entered: 08/28/2017)
2017-08-28	75	TRANSCRIPT OF PROCEEDINGS before Judge Gladys Kessler held on 8-5-15; Page Numbers: 1-23. Date of Issuance:8-28-17. Court Reporter/Transcriber Barbara DeVico, Telephone number 202-354-3118, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, PDF or ASCII) may be purchased from the court reporter.<P> NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 9/18/2017. Redacted Transcript Deadline set for 9/28/2017. Release of Transcript Restriction set for 11/26/2017.(DeVico, Barbara) (Entered: 08/28/2017)
2017-12-05		Case directly reassigned to Judge Dabney L. Friedrich. Judge Gladys Kessler is no longer assigned to the case. (ztnr) (Entered: 12/05/2017)
2017-12-27	76	MANDATE of USCA as to 71 Notice of Appeal to DC Circuit Court, filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ; USCA Case Number 16-5296. (Attachments: # 1 USCA Judgment)(td) (Entered: 12/28/2017)
2018-01-03		MINUTE ORDER setting status conference. In light of 76 the Mandate and [76-1] the Judgment of the U.S. Court of Appeals for the D.C. Circuit, it is hereby ordered that the parties appear for a status conference on January 10, 2018 at 10:00 a.m. in Courtroom 12. The parties shall be prepared to discuss how they intend to proceed. Signed by Judge Dabney L. Friedrich on January 3, 2018. (JPF) (Entered: 01/03/2018)
2018-01-10		Minute Entry for proceedings held before Judge Dabney L. Friedrich: Status Conference held on 1/10/2018. Oral request made by plaintiff for continued oversight of the case by the Court. Oral request heard and taken under advisement. (Court Reporter: Sara Wick) (jl) (Entered: 01/10/2018)
2018-01-12		MINUTE ORDER. This case is before the Court following the issuance of a mandate by the U.S. Court of Appeals for the District of Columbia Circuit on December 27, 2017. Accordingly, on January 10, 2018, the Court held a status conference to discuss whether the parties anticipated further proceedings. During the status conference, plaintiff's counsel made an oral motion for entry of judgment, referred to an affidavit in support that was already in the record, and requested that the Court retain jurisdiction pending the defendants response to an anticipated FOIA request for information related to the benefit designs of health insurance plans offered through the Affordable Care Act exchanges for 2019. Because the identity of the affidavit cited by the plaintiff is not clear from the case docket, the Court hereby ORDERS the plaintiff to submit a motion of no more than two pages in support of the request for entry of judgment with the cited affidavit attached. Plaintiffs motion shall be filed on or before January 19, 2018. Defendants response to the motion of no more than two pages shall be filed on or before January 25, 2018. Signed by Judge Dabney L. Friedrich on January 12, 2018. (JK) (Entered: 01/12/2018)
2018-01-16		Set/Reset Deadlines: Motions in support of the request for entry of judgment due by 1/19/2018. Response to motion due by 1/25/2018. (jl) (Entered: 01/16/2018)
2018-01-19	77	MOTION for Order to Retain Jurisdiction or for Entry of Judgment by CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C (Proposed Judgment), # 4 Text of Proposed Order Text of Proposed Order)(Jennings, Paige). Added MOTION for Judgment on 1/22/2018 (znmw). (Entered: 01/19/2018)
2018-01-25	78	Memorandum in opposition to re 77 MOTION for Judgment MOTION for Order for Entry of Judgment filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Text of Proposed Order)(Peterson, Benton) (Entered: 01/25/2018)
2018-01-26	79	ORDER attached granting in part and denying in part 77 Motion to Retain Jurisdiction or for Entry of Final Judgment Reserving Jurisdiction. Signed by Judge Dabney L. Friedrich on January 26, 2018. (JK) (Entered: 01/26/2018)
2018-01-26	80	Final Judgment attached. Signed by Judge Dabney L. Friedrich on January 26, 2018. (JK) (Entered: 01/26/2018)
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