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Case TitleJUDGE ROTENBERG EDUCATIONAL CENTER, INC. et al v. U.S. FOOD AND DRUG ADMINISTRATION et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv02092
Date Filed2017-10-10
Date ClosedOpen
JudgeChief Judge Beryl A. Howell
PlaintiffJUDGE ROTENBERG EDUCATIONAL CENTER, INC.
PlaintiffJ.R.C. PARENTS AND FRIENDS ASSOCIATION, INC.
PlaintiffPAUL E. PETERSON PH.D
Case DescriptionThe Judge Rothenberg Educational Center, a non-profit providing services for people with aggressive behavior, submitted a series of FOIA requests to the FDA for records concerning its 2016 proposed ban of an electrical stimulation device used by JRC. The agency released some redacted emails, but other than those releases, it did not respond. After hearing nothing further from the agency, JRC filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantU.S. FOOD AND DRUG ADMINISTRATION
DefendantU.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Documents
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Opinion/Order [39]
FOIA Project Annotation: In finding that the FDA had improperly classified a number of records as non-responsive to a voluminous request from the Judge Rotenberng Educational Center pertaining to electrical simulation devices JRC used to treat aggressive behavior, Judge Beryl Howell has identified serious problems with the developing interpretation of what constitutes a record in the aftermath of the D.C. Circuit's decision in American Immigration Lawyers Association v. Executive Office for Immigration Review (AILA), 830 F.3d 667 (D.C. Cir. 2016), in which the D.C. Circuit ruled that agencies could not withhold records based on their conclusion that they were non-responsive to the request, but instead had to cite an applicable exemption. But because the AILA ruling came in the context of the agency's redactions of personally-identifying information about immigration judges based on its conclusion that even though not exempt, some records were not specifically responsive to the parameters of AILA's request, the D.C. Circuit suggested ways in which records could be recategorized so that non-responsive records would not need to be reviewed in the first place. JRC's four FOIA requests were prompted by the 2016 decision by the FDA to propose a ban of the Graduated Electronic Decelerator, an electrical stimulation device used by JRC. The agency searched four components " the Office of the Chief Counsel, the New England District Office, the Center for Devices and Radiological Health, and the Office of Regulatory Affairs. The FDA's FOI Division disclosed roughly 10,000 pages of redacted records. OCC independently disclosed 2,800 pages with redactions, the New England District Office disclosed 10,205 redacted pages, and ORA disclosed 382 redacted pages. Two other components of the Department of Health and Human Services outside the FDA disclosed redacted records as well. The Office of the Secretary provided 756 pages, while the Administration for Community Services disclosed an additional 485 pages with redactions. In total, HHS and FDA, excluding CDRH, produced 24,241 pages. Of those pages, approximately 12,642 pages were redacted in full and another 1,340 pages were redacted in part. Although CDRH had located 60,000 responsive records, it had not yet processed any of them for disclosure. The FDA ultimately provided a 1,979-page Vaughn index explaining its withholding claims made under Exemption 5 (privileges), Exemption 6 (invasion of privacy), and Exemption 7(C) (invasion of privacy concerning law enforcement records). Because of the AILA holding, the agency had recast 51 documents as being non-responsive because they were distinct enough to constitute a separate record. Howell noted that "the defendants' shift " now claiming to have withheld only non-responsive records " puts a spotlight on a variation of the question of what constitutes an 'agency record' under FOIA that has become particularly relevant since AILA: when must information be grouped into a single 'agency record' and when can information be separated into multiple 'agency records'?" Howell explained that "in practice, agencies 'define a "record" when they undertake the process of identifying records that are responsive to a request,' since defining the universe of responsive records is the first step an agency should take in response to a FOIA request." She pointed out that the Justice Department's Office of Information Policy had instructed agencies to use the definition of a record from the Privacy Act, noting that "thus, each 'item, collection, or grouping of information' on the topic of the request can be considered a distinct 'record.'" But here, Howell observed, "the defendants' withholding of non-responsive information in this case suffers a more fundamental problem: midway through litigation the defendants reclassified collections of information that had been treated as one agency record as multiple agency records." She pointed out that "although the question here is not whether information qualifies as an agency record in the first place, but rather about where one record ends and another begins, the admonition against record manipulation is no less applicable. Allowing the defendants to re-define the contours of a given record midway through litigation would invert the ordinary process of responding to a FOIA request, in which the first step is identifying the responsive records, just because the agency realized that, without the change, certain information would be subject to disclosure. That is precisely the sort of manipulation that undermines the purpose of FOIA." Howell found the agency's recharacterization of records troubling. She particularly faulted the agency for splitting emails from their attachments on the basis that they were now separate records. She pointed out that "while emails and their attachments are not per se a single record, at minimum 'attachments should reasonably be considered part and parcel of the email by which they were sent' when the email 'makes explicit reference to, or includes discussion of, the missing attachments.'" She observed that "ubiquitous email practices suggest that agencies will struggle to justify separating an email and its attachments into multiple records. Of course, from time to time emails are sent with the wrong attachment, but in the ordinary course an attachment is included with the email because it relates to the body of the email. Though not a per se rule, ordinary practice leaves very little wiggle room in generally requiring an email with attachments to be kept together as a single record." She concluded that "defendants need not be given the chance to explain why some emails and attachments should be considered as distinct records because reclassifying records midway through litigation is improper." Howell found the agency's deliberative process privilege claims often lacked any explanation as to why records were predecisional. She pointed out that "the defendants' effort to define the deliberate process so broadly is rejected because the withheld records may in fact pertain to a litany of subsidiary decisions that defendants fail to acknowledge." She added that "without the defendants acknowledging these subsidiary decisions or tying records to those specific decisionmaking processes, the Court cannot be sure that a record related to 'agency action' or 'agency work on particular topics' is in fact predecisional." The agency also claimed it was too burdensome to identify individuals in the decisionmaking process. But Howell observed that "marking, for example, a document as from a subordinate to a superior, from a superior to a subordinate, or as from peer to peer would communicate the needed information about the respective position in the chain of command." However, she agreed with the agency that drafts did not lose their predecisional nature if they were never adopted as agency policy. Turning to Exemption 6, Howell found that the agency had failed to take into account the effect of public statements made by some JRC patients suggesting that their personal privacy interests had been diminished to some extent and that the public interest in disclosure of personally-identifying information of such individuals was increased somewhat as well. She pointed out that "the public interest in the identity of those people, given their role in the Proposed Ban, might be stronger than the interest in the identity of another JRC patient. While the Court is sensitive to the defendants' burden, this is what the law requires."
Issues: Agency Record, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 6 - Invasion of privacy
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-10-101COMPLAINT against U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION ( Filing fee $ 400 receipt number 0090-5151524) filed by The Judge Rotenberg Educational Center, Inc., Paul E. Peterson, PH.D., The J.R.C. Parents and Friends Association, Inc.. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit A-3, # 4 Exhibit A-4, # 5 Exhibit A-5, # 6 Exhibit A-6, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F, # 12 Exhibit G, # 13 Exhibit H, # 14 Exhibit I, # 15 Exhibit J, # 16 Exhibit K, # 17 Exhibit L, # 18 Exhibit M, # 19 Exhibit N, # 20 Exhibit O, # 21 Exhibit P, # 22 Exhibit Q, # 23 Exhibit R, # 24 Civil Cover Sheet, # 25 Summons, # 26 Summons, # 27 Summons, # 28 Summons)(Longosz, Edward) (Entered: 10/10/2017)
2017-10-102Corporate Disclosure Statement by The Judge Rotenberg Educational Center, Inc.. (Longosz, Edward) (Main Document 2 replaced on 10/11/2017) (zsth). (Entered: 10/10/2017)
2017-10-10Case Assigned to Chief Judge Beryl A. Howell. (sth) (Entered: 10/11/2017)
2017-10-113SUMMONS (4) Issued Electronically as to U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(sth) (Entered: 10/11/2017)
2017-10-124ERRATA by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON 1 Complaint,,, filed by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., PAUL E. PETERSON, JUDGE ROTENBERG EDUCATIONAL CENTER, INC.. (Longosz, Edward) (Entered: 10/12/2017)
2017-10-135Corporate Disclosure Statement by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC.. (Longosz, Edward) (Entered: 10/13/2017)
2017-10-166STANDING ORDER. Signed by Chief Judge Beryl A. Howell on October 16, 2017. (lcbah1) (Entered: 10/16/2017)
2017-11-147NOTICE of Appearance by William Mark Nebeker on behalf of U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION (Nebeker, William) (Entered: 11/14/2017)
2017-11-208ANSWER to 1 Complaint by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION.(Nebeker, William) Modified to add link on 11/21/2017 (znmw). (Entered: 11/20/2017)
2017-12-049MEET AND CONFER STATEMENT. (Nebeker, William) (Entered: 12/04/2017)
2017-12-06MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 9 Joint Meet and Confer Report, the parties to file, by January 12, 2018, a further Joint Status Report proposing a schedule to govern further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on December 6, 2017. (lcbah4) (Entered: 12/06/2017)
2017-12-06Set/Reset Deadlines: Joint Status Report due by 1/12/2018. (tg) (Entered: 12/06/2017)
2017-12-0610MEET AND CONFER STATEMENT. (Longosz, Edward) (Entered: 12/06/2017)
2017-12-07MINUTE ORDER (paperless) DIRECTING, in consideration of the parties' 10 Joint Meet and Confer Report, the parties to submit, by January 12, 2018, an additional Meet and Confer Report and propose a briefing schedule. Signed by Chief Judge Beryl A. Howell on December 7, 2017. (lcbah1) (Entered: 12/07/2017)
2017-12-08Set/Reset Deadlines: Joint Meet & Confer Report due by 1/12/2018. (tg) (Entered: 12/08/2017)
2017-12-1211Unopposed MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Max D. Stern, :Firm- Todd & Weld LLP, :Address- 1 Federal Street, Boston, MA 02110. Phone No. - 617-624-4712. Fax No. - 617-227-5777 Filing fee $ 100, receipt number 0090-5243797. Fee Status: Fee Paid. by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Longosz, Edward) (Entered: 12/12/2017)
2017-12-1212Unopposed MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Michael P. Flammia, :Firm- Eckert Seamans Cherin & Mellott, LLC, :Address- 2 International Place, 16th Floor, Boston, MA 02110. Phone No. - 617-342-6854. Fax No. - 617-342-6899 Filing fee $ 100, receipt number 0090-5243811. Fee Status: Fee Paid. by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Longosz, Edward) (Entered: 12/12/2017)
2017-12-13MINUTE ORDER (paperless) GRANTING the plaintiffs' 11 and 12 Unopposed Motions for Admission Pro Hac Vice of Max D. Stern and Michael P. Flammia. Messrs. Max D. Stern, Esq. and Michael P. Flammia, Esq. may enter appearances pro hac vice for the purpose of representing the plaintiffs in this action. Signed by Chief Judge Beryl A. Howell on December 13, 2017. (lcbah1) (Entered: 12/13/2017)
2018-01-0513NOTICE of Appearance by Max D. Stern on behalf of J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC. (Stern, Max) (Entered: 01/05/2018)
2018-01-0814RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/6/2017., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 11/6/2017; U.S. FOOD AND DRUG ADMINISTRATION served on 11/6/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/6/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 12/6/2017.) (Attachments: # 1 Affidavit of Service)(Longosz, Edward) (Entered: 01/08/2018)
2018-01-0915NOTICE of Appearance by Michael P. Flammia on behalf of JUDGE ROTENBERG EDUCATIONAL CENTER, INC. (Flammia, Michael) (Main Document 15 replaced on 1/10/2018) (znmw). (Entered: 01/09/2018)
2018-01-1216MEET AND CONFER STATEMENT. (Longosz, Edward) (Entered: 01/12/2018)
2018-01-19NOTICE OF HEARING: The parties shall take notice that a Status Hearing is scheduled for 1/26/2018, at 9:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell. (tg) (Entered: 01/19/2018)
2018-01-25NOTICE OF RESCHEDULED HEARING: The parties shall take notice that the Status Hearing originally scheduled to be heard on January 26, 2018, is RESCHEDULED for February 2, 2018, at 9:00 AM in Courtroom 22A before Chief Judge Beryl A. Howell. (tg) (Entered: 01/25/2018)
2018-02-02Minute Entry for proceedings held before Chief Judge Beryl A. Howell: Status Conference held on 2/2/2018. (Order forthcoming.) (Court Reporter Elizabeth Saint-Loth.) (tg) (Entered: 02/02/2018)
2018-02-02MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 16 Supplemental Joint Meet and Confer Statement and the proceedings held on Friday, February 2, 2018, see Minute Entry, dated Feb. 2, 2018, that, by 5 P.M. today, the plaintiffs shall submit a notice to the Court regarding the precise production to date of records responsive to the plaintiffs' requests under the Freedom of Information Act ("FOIA"); and the defendants shall notify the Court of the same, along with the dates of any referral of the plaintiffs' FOIA requests at issue to components of Health and Human Services ("HHS") other than the FDA; and ISSUING the following SCHEDULING ORDER: (1) by March 2, 2018, the defendants shall file a Vaughn Index for all documents produced, in full or in part, or withheld, by each FDA component other than the Center for Devices and Radiological Health ("CDRH"); (2) by April 2, 2018, the parties shall file any dispositive motions as to issues arising from the responses by each FDA component other than the Center for Devices and Radiological Health ("CDRH"), to the plaintiffs' FOIA requests; (3) by May 4, 2018, the parties shall file any oppositions; (4) by May 14, 2018, the parties shall file any replies; (5) the CDRH and any other HHS component to which a referral has been made shall make a rolling production of no fewer than 5,000 pages per month to the plaintiffs, beginning on March 1, 2018, and continuing every sixty days thereafter until production is complete; and (6) by September 5, 2018, and with every production thereafter, the parties shall file a joint status report advising the Court on the status of the CDRH production, including the number of records produced, in full or in part or withheld, and remaining for processing, and the estimated date for completion of such processing. Signed by Chief Judge Beryl A. Howell on February 2, 2018. (lcbah1) (Entered: 02/02/2018)
2018-02-0217NOTICE To The Court by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Longosz, Edward) (Entered: 02/02/2018)
2018-02-02Set/Reset Deadlines: Rolling production of no fewer than 5,000 pages per month to begin by 3/1/2018; Vaughn Index due by 3/2/2018; Dispositive Motions due by 4/2/2018; Oppositions to Dispositive Motions due by 5/4/2018; Replies due by 5/14/2018; Joint Status Report due by 9/5/2018, and with every production thereafter. (tg) (Entered: 02/02/2018)
2018-02-0218STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Nebeker, William) (Entered: 02/02/2018)
2018-03-0219NOTICE Of Filing Vaughn Index by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION (Attachments: # 1 Exhibit Vaughn Index, # 2 Exhibit Cover Letter)(Nebeker, William) (Entered: 03/02/2018)
2018-03-2720Joint MOTION to Amend/Correct Scheduling Order by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Attachments: # 1 Proposed Amended Scheduling Order)(Longosz, Edward) (Entered: 03/27/2018)
2018-03-29MINUTE ORDER (paperless) AMENDING, upon consideration of the parties' 20 Joint Motion to Amend/Correct Scheduling Order, the SCHEDULING ORDER as follows: by May 11, 2018, the parties shall file a joint status report updating the Court as to the parties' progress in resolving any areas of disagreement. By June 8, 2018, the defendants shall file (i) an updated Vaughn index for all documents produced, in full or in part, or withheld by each FDA component other than CDRH, as well as (ii) any dispositive motions concerning the responses by all FDA components other than CDRH to the plaintiffs' FOIA requests. By July 13, 2018, the plaintiffs shall file any dispositive motions or cross-motions and/or any oppositions to the defendants' dispositive motions concerning the responses by all FDA components other than CDRH to the plaintiffs' FOIA requests. By August 17, 2018, the defendants shall file any replies in support of their dispositive motions and/or oppositions to the plaintiffs' dispositive motions. By August 31, 2018, the plaintiffs shall file any replies in support of their dispositive motions. Signed by Chief Judge Beryl A. Howell on March 29, 2018. (lcbah1) (Entered: 03/29/2018)
2018-03-30Set/Reset Deadlines: Joint Status Report due by 5/11/2018; defendants' updated Vaughn Index and any dispositive motions concerning the responses by all FDA components other than CDRH to the plaintiffs' FOIA requests due by 6/8/2018; plaintiffs' Dispositive Motions or Cross-Motions and/or any oppositions to the defendants' dispositive motions concerning the responses by all FDA components other than CDRH to the plaintiffs' FOIA requests due by 7/13/2018; defendants' replies in support of Dispositive Motions and/or oppositions to the plaintiffs' dispositive motions due by 8/17/2018; plaintiffs' replies in support of their dispositive motions due by 8/31/2018.(tg) (Entered: 03/30/2018)
2018-05-1121Joint STATUS REPORT and Request to Extend the Scheduling Order by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 05/11/2018)
2018-05-1122MOTION to Extend the Scheduling Order by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (See docket entry 21 to view document)(zrdj) (Entered: 05/14/2018)
2018-05-15MINUTE ORDER (paperless) MODIFYING the scheduling order as follows: by (1) June 15, 2018, the parties shall file a Joint Status Report updating the Court on their progress in resolving any areas of disagreement; (2) July 12, 2018, the defendants shall file any dispositive motions concerning the responses by all FDA components other than CDRH to the plaintiffs' FOIA requests, as well as an updated Vaughn index for all documents produced, in full or in part, or withheld by each FDA component other than CDRH; (3) August 10, 2018, the plaintiffs shall file any dispositive motions or cross-motions and/or any oppositions to the defendants' dispositive motions concerning the responses by all FDA components other than CDRH to the plaintiffs' FOIA requests; (4) September 7, 2018, the defendants shall file any replies in support of their dispositive motions and/or any oppositions to the plaintiffs' dispositive motions; (5) September 21, 2018, the plaintiffs shall file any replies in support of their dispositive motions. Signed by Chief Judge Beryl A. Howell on May 15, 2018. (lcbah1) (Entered: 05/15/2018)
2018-05-16Set/Reset Deadlines: Joint Status Report due by 6/15/2018; Dispositive Motions concerning the responses by all FDA components other than CDRH to the plaintiffs' FOIA requests, as well as an updated Vaughn index for all documents produced, in full or in part, or withheld by each FDA component other than CDRH due by 7/12/2018; Dispositive Motions or Cross-Motions and Oppositions to the dispositive motions concerning the responses by all FDA components other than CDRH to the plaintiffs' FOIA requests due by 8/10/2018. Reply in Support of Dispositive Motions or Oppositions to Dispositive Motions due by 9/7/2018; Reply in support of plaintiffs' dispositive Motions due by 9/21/2018. (tg) (Entered: 05/16/2018)
2018-06-1523Joint STATUS REPORT by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 06/15/2018)
2018-07-1224NOTICE (Notice of Filing in Support of Defendants' Motion for Partial Summary Judgment) by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION (Attachments: # 1 Declaration (Declaration of Nelson D. Hermilla), # 2 Declaration (Declaration of Sarah Kotler), # 3 Declaration (Declaration of Michael S. Marquis), # 4 Declaration (Declaration of David Mednick), # 5 Declaration (Declaration of Richard Nicholls), # 6 Declaration (Declaration of Melissa Pickworth), # 7 Declaration (Declaration of Barbara A. Recupero), # 8 Declaration (Declaration of Eric F. Stein), # 9 (Updated Vaughn Index))(Nebeker, William) (Entered: 07/12/2018)
2018-07-1225MOTION for Partial Summary Judgment by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 07/12/2018)
2018-07-1726Consent MOTION to Modify the Scheduling Order by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Attachments: # 1 Proposed Amended Scheduling Order)(Longosz, Edward) (Entered: 07/17/2018)
2018-07-24MINUTE ORDER (paperless) MODIFYING, upon consideration of the plaintiff's 26 Consent Motion to Modify the Scheduling Order, as follows: (1) by September 7, 2018, the plaintiffs shall file any dispositive motion or cross-motion and/or any opposition to the defendants' 25 Motion for Partial Summary Judgment; (2) by October 19, 2018, the defendants shall file any reply in support of their dispositive motion and/or any opposition to the plaintiffs' dispositive motion; (3) by November 2, 2018, the plaintiffs shall file any reply in support of their dispositive motion. The Scheduling Order otherwise remains unchanged. Signed by Chief Judge Beryl A. Howell on July 24, 2018. (lcbah1) (Entered: 07/24/2018)
2018-07-24Set/Reset Deadlines: Plaintiffs' dispositive motion or cross-motion and/or any opposition to motion for summary judgment due by 9/7/2018; defendants' opposition to dispositive motion and reply to opposition to motion for summary judgment due by 10/19/2018; plaintiffs' reply to opposition to dispositive motion due by 11/2/2018. (tg) (Entered: 07/24/2018)
2018-09-0527Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Nebeker, William) (Entered: 09/05/2018)
2018-09-0728NOTICE of Filing by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Attachments: # 1 Declaration of Glenda P. Crookes, # 2 Declaration of Matthew D. Rodgers (Part 1), # 3 Declaration of Matthew D. Rodgers (Part 2))(Longosz, Edward) (Entered: 09/07/2018)
2018-09-0729Memorandum in opposition to re 25 MOTION for Partial Summary Judgment filed by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Attachments: # 1 Text of Proposed Order)(Longosz, Edward) (Entered: 09/07/2018)
2018-09-0730Cross MOTION for Partial Summary Judgment and Memorandum in Support by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Attachments: # 1 Text of Proposed Order)(Longosz, Edward) (Entered: 09/07/2018)
2018-10-0531Consent MOTION to Modify Briefing Schedule by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/05/2018)
2018-10-09MINUTE ORDER (paperless) GRANTING the 31 Defendants' Consent Motion to Modify the Scheduling Order and ISSUING the following scheduling order: (1) by November 9, 2018, the defendants shall file any replies in support of their dispositive motions and/or oppositions to the plaintiffs' dispositive motions; (2) by December 10, 2018, the plaintiffs shall file any replies in support of their dispositive motions. All other deadlines shall remain the same. Signed by Chief Judge Beryl A. Howell on October 9, 2018. (lcbah1) (Entered: 10/09/2018)
2018-10-09Set/Reset Deadlines: Defendants' replies in support of their dispositive motions and/or oppositions to the plaintiffs' dispositive motions due by 11/9/2018; plaintiffs' replies in support of their dispositive motions due by 12/10/2018. (tg) (Entered: 10/09/2018)
2018-10-2932Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Nebeker, William) (Entered: 10/29/2018)
2018-11-0933Memorandum in opposition to re 30 Cross MOTION for Partial Summary Judgment and Memorandum in Support and Combined Reply in Support of Defendants' Summary Judgment Motion filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Attachments: # 1 Statement of Facts Response, # 2 Supplemental Vaughn Index, # 3 Declaration (supplemental) of R. Nicholls, # 4 Declaration (supplemental) of B. Recupero (with Attachment A thereto), # 5 Declaration (supplemental) of M. Marquis, # 6 Declaration (supplemental) of S. Kotler)(Nebeker, William) (Entered: 11/09/2018)
2018-11-0934REPLY to opposition to motion re 25 MOTION for Partial Summary Judgment and Combined Opposition to Plaintiffs' Cross-Motion for Summary Judgment (attachments filed at ECF No. 33) filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Nebeker, William) (Entered: 11/09/2018)
2018-12-1035REPLY to opposition to motion re 30 Cross MOTION for Partial Summary Judgment and Memorandum in Support of Plaintiffs' Cross-Motion for Partial Summary Judgment filed by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Attachments: # 1 Exhibit Exhibit a)(Longosz, Edward) (Entered: 12/10/2018)
2018-12-2136Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Nebeker, William) (Entered: 12/21/2018)
2019-02-1937Consent MOTION to Modify the Scheduling Order with proposed order by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION (Nebeker, William) Modified event title on 3/13/2019 (znmw). (Entered: 02/19/2019)
2019-02-21MINUTE ORDER (paperless) GRANTING the 37 Defendants' Consent Motion to Modify the Scheduling Order and ISSUING the following SCHEDULING ORDER: (1) by April 1, 2019, the defendants shall produce no fewer than 10,000 pages of records from the Center for Devices and Radiological Health ("CDRH") and the parties shall file a joint status report advising the Court on the status of CDRH's production, including the number of records produced, in full or in part or withheld, and remaining for processing, and the estimated date for completion of such processing; (2) by May 30, 2019, the defendants shall produce no fewer than 10,000 pages of records from the CDRH and the parties shall file a joint status report advising the Court on the status of CDRH's production, including the number of records produced, in full or in part or withheld, and remaining for processing, and the estimated date for completion of such processing. The Scheduling Order otherwise remains unchanged. Signed by Chief Judge Beryl A. Howell on February 21, 2019. (lcbah1) (Entered: 02/21/2019)
2019-03-2138ORDER GRANTING in part and DENYING in part the defendants' 25 Motion for Partial Summary Judgment and GRANTING in part and DENYING in part the plaintiffs' 30 Cross-Motion for Partial Summary Judgment. See Order for further details. Signed by Chief Judge Beryl A. Howell on March 21, 2019. (lcbah1) (Main Document 38 replaced on 6/10/2019, pursuant to Errata docketed under ECF 43 .) (tg). (Entered: 03/21/2019)
2019-03-2139MEMORANDUM OPINION regarding the defendants' 25 Motion for Partial Summary Judgment and the plaintiffs' 30 Cross-Motion for Partial Summary Judgment. Signed by Chief Judge Beryl A. Howell on March 21, 2019. (lcbah1) (Main Document 39 replaced on 6/10/2019, pursuant to Errata docketed under ECF 43 .) (tg). (Entered: 03/21/2019)
2019-03-22Set/Reset Deadlines: Joint Status Report due by 4/19/2019. (tg) (Entered: 03/22/2019)
2019-04-0140Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Nebeker, William) (Entered: 04/01/2019)
2019-04-1841Joint STATUS REPORT by JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 04/18/2019)
2019-04-22MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 41 Joint Status Report, the following SCHEDULING ORDER to control the timing of proceedings in this matter: (1) by May 30, 2019, consistent with the February 21, 2019 minute order, the defendants shall produce no fewer than 10,000 pages of records from CDRH and the parties shall file a joint status report advising the Court on the status of CDRH's production and the parties' negotiations to narrow the issues in dispute; (2) by July 29, 2019, the defendants shall produce no fewer than 10,000 pages of records, unless fewer than 10,000 pages remain to be produced, and the parties shall file a joint status report advising the Court on the status of CDRH's production, updating the Court on the status of the parties' negotiations to narrow the issues in dispute, and proposing a schedule for any dispositive briefing. Signed by Chief Judge Beryl A. Howell on April 22, 2019. (lcbah1) (Entered: 04/22/2019)
2019-04-22Set/Reset Deadlines: Defendants' production of 10,000 pages and Joint Status Report due by 5/30/2019. Defendant's production of 10,000 pages and Joint Status Report due by 7/29/2019. (hmc) (Entered: 04/22/2019)
2019-05-3042Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Nebeker, William) (Entered: 05/30/2019)
2019-06-1043ERRATA as to the 38 Order and 39 Memorandum Opinion. See attachment for further details. Signed by Chief Judge Beryl A. Howell on June 10, 2019. (lcbah1) (Entered: 06/10/2019)
2019-07-2944Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Nebeker, William) (Entered: 07/29/2019)
2019-07-30MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 44 Joint Status Report ("JSR"), the following SCHEDULING ORDER to control further proceedings: (1) by August 16, 2019, the defendants shall produce to the plaintiffs the remaining 63 pages of records which were referred to the State Department; (2) by October 31, 2019, the parties shall file a joint status report updating the Court about the status of the case and any progress made toward completion of the Vaughn indices; (3) by March 20, 2020, the parties shall file a joint status report updating the Court about the status of the case and any progress made toward completion of the Vaughn indices; (4) by May 4, 2020, the defendants shall file (i) any dispositive motion, (ii) the revised Supplemental Vaughn Index, in accordance with the Court's 39 Memorandum Opinion and the procedures set out in the parties' JSR, for the production of non-CDRH records; and (iii) the sample Vaughn Index, in accordance with procedures set out in the parties' JSR, for the production of CDRH records; (5) by June 30, 2020, the plaintiff shall file any dispositive motion or cross-motion and any opposition to the defendants' dispositive motion; (6) by July 30, 2020, the defendants shall file any reply in support of their dispositive motion and any opposition to the plaintiffs' dispositive motion; (7) by August 31, 2020, the plaintiffs shall file any reply in support of their dispositive motion. Signed by Chief Judge Beryl A. Howell on July 30, 2019. (lcbah1) (Entered: 07/30/2019)
2019-07-30Set/Reset Deadlines: Defendants' production of the remaining 63 pages of records which were referred to the State Department due by 8/16/2019; Joint Status Report due by 10/31/2019; Joint Status Report due by 3/20/2020 ; Defendants' Dispositive Motion and other filings pursuant to Minute Order entered on 7/30/2019, due by 5/4/2020; Plaintiffs' Dispositive Motion or Cross-Motion and any Opposition to the Defendants' Dispositive Motion due by 6/30/2020; Defendants' Reply in Support of their Dispositive Motion and any Opposition to the Plaintiff's Dispositive Motion due by 7/30/2020; Plaintiffs' Reply in Support of their Dispositive Motion due by 8/31/2020. (tg) (Entered: 07/30/2019)
2019-10-3145Joint STATUS REPORT by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 10/31/2019)
2020-03-1946NOTICE OF SUBSTITUTION OF COUNSEL by Robert Aaron Caplen on behalf of U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION Substituting for attorney W. Mark Nebeker (Caplen, Robert) (Entered: 03/19/2020)
2020-03-1947Unopposed MOTION for Extension of Time to File Joint Status Report by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Caplen, Robert) (Entered: 03/19/2020)
2020-03-20MINUTE ORDER (paperless) GRANTING the defendants' 47 Unopposed Motion for Enlargement of Time and DIRECTING the parties to file a joint status report by March 25, 2020. Signed by Chief Judge Beryl A. Howell on March 20, 2020. (lcbah1) (Entered: 03/20/2020)
2020-03-23Set/Reset Deadlines: Joint status report due by 3/25/2020. (tg) (Entered: 03/23/2020)
2020-03-2548Joint STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Caplen, Robert) (Entered: 03/25/2020)
2020-04-0749Supplemental STATUS REPORT by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Caplen, Robert) (Entered: 04/07/2020)
2020-05-0450MOTION for Summary Judgment by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Non-CDRH Vaughn Index, # 4 Declaration of Candace Boston, # 5 Sample Vaughn Index for CDRH Records (Attach. 1 to Boston Decl.), # 6 Declaration of Sarah Kotler (2d Suppl.), # 7 Declaration of David Mednick (Suppl.), # 8 Declaration of Barbara A. Recupero (2d Suppl.), # 9 Declaration of Melissa Pickworth, # 10 Declaration of Richard Nicholls (2d Suppl.), # 11 Declaration of Michael S. Marquis, # 12 Declaration of Michael S. Marquis (Suppl.), # 13 Declaration of Brandon J. Gaylord, # 14 Declaration of Gorka Garcia-Malene, # 15 Declaration of Nelson D. Hermilla, # 16 Declaration of Kilian Kagle, # 17 Declaration of Eric F. Stein (Suppl.), # 18 Declaration of Gregory Smith, # 19 Text of Proposed Order)(Caplen, Robert) (Entered: 05/04/2020)
2020-06-1951Unopposed MOTION to Modify Scheduling Order by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Attachments: # 1 Text of Proposed Order)(Longosz, Edward) (Entered: 06/19/2020)
2020-06-19MINUTE ORDER (paperless) GRANTING the plaintiffs' 51 Unopposed Motion to Modify the Scheduling Order and ISSUING the following SCHEDULING ORDER to control further proceedings: (1) by August 31, 2020, the plaintiffs shall file any dispositive cross-motion and any opposition to the defendants' 50 Motion for Summary Judgment; (2) by October 14, 2020, the defendants shall file any reply in support of their Motion for Summary Judgment and any opposition to the plaintiffs' dispositive cross-motion; (7) by November 13, 2020, the plaintiffs shall file any reply in support of their dispositive cross-motion. Signed by Chief Judge Beryl A. Howell on June 19, 2020. (lcbah1) (Entered: 06/19/2020)
2020-06-19Set/Reset Deadlines: Cross-Motion and opposition to motion for summary judgment due by 8/31/2020; opposition to cross-motion and reply to opposition to motion for summary judgment due by 10/14/2020; reply to opposition to cross-motion due by 11/13/2020. (ztg) (Entered: 06/19/2020)
2020-08-2152Consent MOTION to Stay by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON (Attachments: # 1 Text of Proposed Order)(Longosz, Edward) (Entered: 08/21/2020)
2020-08-24MINUTE ORDER (paperless) STAYING, upon consideration of plaintiffs' 52 Consent Motion to Stay the Scheduling Order, proceedings in this matter; and DIRECTING the parties to file a joint status report within 14 days of the D.C. Circuit's decision in case no. 20-1087 advising the Court whether further proceedings are necessary and, if so, proposing a schedule for further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on August 24, 2020. (lcbah1) (Entered: 08/24/2020)
2021-06-2853NOTICE of Appearance by Sean Michael Tepe on behalf of All Defendants (Tepe, Sean) (Entered: 06/28/2021)
2021-07-2054Joint STATUS REPORT by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Attachments: # 1 Exhibit 1-3)(Longosz, Edward) (Entered: 07/20/2021)
2021-07-23MINUTE ORDER (paperless) EXTENDING, upon consideration of the parties' 54 Joint Status Report, the stay in this action through September 3, 2021, and DIRECTING the parties to submit, by September 3, 2021, a joint status report advising the Court whether further proceedings are necessary and, if so, proposing a schedule for further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on July 23, 2021. (lcbah1) (Entered: 07/23/2021)
2021-07-23Set/Reset Deadlines: Joint Status Report due by 9/3/2021. (ztg) (Entered: 07/23/2021)
2021-08-3155Joint STATUS REPORT by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 08/31/2021)
2021-08-31MINUTE ORDER (paperless) EXTENDING, upon consideration of the parties' 55 Joint Status Report, the stay in this action through September 24, 2021, and DIRECTING the parties to submit, by September 24, 2021, a joint status report advising the Court whether further proceedings are necessary and, if so, proposing a schedule for further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on August 31, 2021. (lcbah1) (Entered: 08/31/2021)
2021-08-31Set/Reset Deadlines: Joint Status Report due by 9/24/2021. (hmc) (Entered: 08/31/2021)
2021-09-2256Joint STATUS REPORT by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 09/22/2021)
2021-09-22MINUTE ORDER (paperless) EXTENDING, upon consideration of the parties' 56 Joint Status Report, the stay in this action until 14 days after the D.C. Circuit's judgment in case no. 20-1087 becomes final; and DIRECTING the parties to file, within 14 days of the D.C. Circuit's decision on whether to rehear en banc the appeal in case no. 20-1087, a joint status report advising the Court whether further proceedings are necessary and, if so, proposing a schedule for further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on September 22, 2021. (lcbah1) (Entered: 09/22/2021)
2021-12-0657Joint STATUS REPORT by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 12/06/2021)
2021-12-06MINUTE ORDER (paperless) EXTENDING, upon consideration of the parties' 57 Joint Status Report, the stay in this action and DIRECTING the parties to file, within 14 days of the earlier of (1) February 22, 2022, or (2) the date on which the FDA files a petition for a writ of certiorari to the U.S. Supreme Court for the appeal in D.C. Circuit case no. 20-1087, a joint status report advising the Court whether further proceedings are necessary and, if so, proposing a schedule for further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on December 6, 2021. (lcbah1) (Entered: 12/06/2021)
2021-12-07ENTERED IN ERROR.....Set/Reset Deadlines: Summary judgment motion due by 12/13/2021; cross-motion and opposition to motion for summary judgment due by 1/19/2022; opposition to cross-motion and reply to opposition to motion for summary judgment due by 2/21/2022; reply to opposition to cross-motion due by 3/18/2022. (ztg) Modified on 12/7/2021 (ztg). (Entered: 12/07/2021)
2021-12-07NOTICE OF CORRECTED DOCKET ENTRY: The Set/Reset Deadline entry dated 12/7/2021, was entered in error in this case, the parties shall disregard the entry. (ztg) (Entered: 12/07/2021)
2022-03-0858Joint STATUS REPORT by JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 03/08/2022)
2022-03-08MINUTE ORDER (paperless) EXTENDING, upon consideration of the parties' 58 Joint Status Report, the stay in this action through May 9, 2022, and DIRECTING the parties to file, by May 9, 2022, a joint status report advising the Court whether further proceedings are necessary and, if so, proposing a schedule to govern further proceedings in this matter, unless a stipulation of dismissal has been filed. Signed by Chief Judge Beryl A. Howell on March 8, 2022. (lcbah1) (Entered: 03/08/2022)
2022-03-08Set/Reset Deadlines: Joint Status Report due by 5/9/2022. (ztg) (Entered: 03/08/2022)
2022-05-0959Joint STATUS REPORT by JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 05/09/2022)
2022-05-10MINUTE ORDER (paperless) EXTENDING, upon consideration of the parties' 59 Joint Status Report, the stay in this action through June 23, 2022, and DIRECTING the parties to file, by June 23, 2022, a joint status report advising the Court whether further proceedings are necessary and, if so, proposing a schedule to govern further proceedings in this matter, unless a stipulation of dismissal has been filed. Signed by Chief Judge Beryl A. Howell on May 10, 2022. (lcbah1) (Entered: 05/10/2022)
2022-05-10Set/Reset Deadlines: Joint Status Report due by 6/23/2022. (ztg) (Entered: 05/10/2022)
2022-06-2360Joint MOTION for Extension of Time to File Joint Status Report by JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Attachments: # 1 Text of Proposed Order Proposed Order)(Longosz, Edward) (Entered: 06/23/2022)
2022-06-23MINUTE ORDER (paperless) GRANTING the parties' 60 Joint Motion for Extension of Time to File Joint Status Report; and EXTENDING the stay in this action through July 14, 2022; and further DIRECTING the parties to file, by July 14, 2022, a joint status report advising the Court whether further proceedings are necessary and, if so, proposing a schedule to govern further proceedings in this matter, unless a stipulation of dismissal has been filed. Signed by Chief Judge Beryl A. Howell on June 23, 2022. (lcbah1) (Entered: 06/23/2022)
2022-06-23Set/Reset Deadlines: Joint Status Report due by 7/14/2022. (ztg) (Entered: 06/23/2022)
2022-07-1461Joint STATUS REPORT by JUDGE ROTENBERG EDUCATIONAL CENTER, INC.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Longosz, Edward) (Entered: 07/14/2022)
2022-07-15MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 61 Joint Status Report, the following SCHEDULING ORDER to control further proceedings: 1) By July 22, 2022, plaintiffs shall provide defendants with their current copies of the redacted 125 records on plaintiffs' July 1, 2022 list that were previously produced by defendants with withheld portions; 2) By August 19, 2022, plaintiffs shall file their motion to amend their complaint and the proposed amended complaint; 3) By September 16, 2022, defendants shall file any opposition to plaintiffs' motion to amend their complaint; 4) By September 30, 2022, plaintiffs shall file any reply in support of their motion to amend their complaint; 5) By October 3, 2022, (1) defendants shall provide plaintiffs with a response to plaintiffs' July 1, 2022 request, including copies of the 125 records for which defendants determine may be released with fewer withholdings; and (2) the parties shall file a Joint Status Report, advising the Court whether further proceedings are necessary and, if so, proposing a schedule for further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on July 15, 2022. (lcbah1) (Entered: 07/15/2022)
2022-07-15Set/Reset Deadlines: plaintiffs to provide by 7/22/2022, defendants with their current copies of the redacted 125 records on plaintiffs' July 1, 2022 list that were previously produced by defendants with withheld portions; Motion to amend the Complaint due by 8/19/2022; opposition due by 9/16/2022; reply due by 9/30/2022; defendants to provide by 10/3/2022, plaintiffs with a response to plaintiffs' July 1, 2022 request, including copies of the 125 records for which defendants determine may be released with fewer withholdings; Joint Status Report due by 10/3/2022.(ztg) (Entered: 07/15/2022)
2022-08-1962MOTION to Amend/Correct 1 Complaint,,, by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Attachments: # 1 Text of Proposed Order Motion Exhibit 1, # 2 Memorandum in Support, # 3 Memo Exhibit 1 - Amended Complaint)(Longosz, Edward) (Entered: 08/19/2022)
2022-09-1663Memorandum in opposition to re 62 Motion to Amend/Correct, filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Caplen, Robert) (Entered: 09/16/2022)
2022-09-3064REPLY re 62 MOTION to Amend/Correct 1 Complaint,,, filed by JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Longosz, Edward) Modified docket event/text on 10/6/2022 (zed). (Entered: 09/30/2022)
2022-10-0365Joint STATUS REPORT by J.R.C. PARENTS AND FRIENDS ASSOCIATION, INC., JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 10/03/2022)
2022-11-01MINUTE ORDER (paperless) DENYING plaintiffs' 62 Motion to Amend Complaint; and DIRECTING the parties to file, by December 1, 2022, a joint status report advising the Court whether further proceedings are necessary, and, if so, proposing a schedule to govern further proceedings in this matter, unless a stipulation of dismissal has been filed. Plaintiffs filed their original 1 Complaint in 2017, seeking to compel defendants to produce documents responsive to a series of FOIA requests they had submitted the previous year, concerning the FDA's then-proposed rule banning the electrical stimulation device used by plaintiff Judge Rotenberg Educational Center (JREC). See 1 Compl. ¶¶ 1, 76-78, ECF No. 1. At the time of filing the complaint, plaintiffs had received only 92 pages of records from defendants. See Judge Rotenberg Educ. Ctr., Inc. v. U.S. Food and Drug Admin. , 376 F. Supp. 3d 47, 56-57 (D.D.C. 2019). Over the last five years, much has changed, with the release of thousands of requested records to plaintiffs, see, e.g. , id. at 55-57, 75-76 (noting the 24,000 pages of records returned to date and the 60,000 pages in the midst of being processed), and, during an extended stay in these proceedings, a successful challenge to the FDA's then-final rule before the D.C. Circuit, bringing about the rule's vacatur, see 52 Consent Mot. to Stay at 2, ECF No. 52; 58 Joint Status Report at 2, ECF No. 58. This case should therefore be nearing resolution with the completion of briefing on defendants' pending motion for summary judgment, which has been long-stayed since 2020, see 50 Defs.' Mot. Summary Judgment, ECF No. 50, following the parties' efforts to narrow the issues remaining in the case before that briefing recommences, see, e.g. , 59 Joint Status Report, ECF No. 59, including by, most recently, revisiting defendants' redactions to 125 records identified by plaintiffs, see 65 Joint Status Report, ECF No. 65. Now, however, plaintiffs seek not to proceed with the summary judgment briefing, but rather to supplement their complaint under Fed. R. Civ. P. 15(d) "to assert a single additional FOIA claim against FDA." 62 Pls.' Mot. Amend at 1, ECF No. 62; see also 64 Pls.' Reply Supp. Mot. Amend at 3 n.4, ECF No. 64 (conceding that although their motion was styled as one "to amend" the complaint, it is "more accurately characterized as a motion to supplement"). Rule 15(d) provides that a "court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d). Here, that subsequent event is an entirely new FOIA request that plaintiffs submitted to the FDA just this year--nearly six years after the original FOIA requests that gave rise to the instant litigation. See [62-2] Pls.' Mem. Supp. Mot. Amend at 4-5, 10, ECF No. 62-2. The new request concerns documents related to FDA's purported "lobbying" efforts to have the vacated rule reestablished by legislative action. See id. at 2-3. A Rule 15(d) motion should be granted "when doing so will promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the action." Hall v. CIA , 437 F.3d 94, 101 (D.C. Cir. 2006) (internal quotation omitted). None of those factors is met here. Allowing plaintiffs' proposed supplementation at this late stage of the instant litigation would, first, prevent the economic and speedy disposition of the existing controversy between the parties, despite the fact that defendants have now fully responded to the initial FOIA requests and initiated briefing that would dispose of the case. Second, plaintiffs' proposed amendment would cause undue delay by putting off the resolution of the pending motion for summary judgment by months or years. Finally, plaintiffs' proposed amendment would prejudice the rights of defendants, who have already expended time and resources bringing the initial matter to a close and briefing their motion for summary judgment, which briefing would almost certainly have to be redone in its entirety when the production related to the newest FOIA request is completed at some unknown future date. If a party submits a FOIA request and is dissatisfied with the governments response, the proper course is to institute a new lawsuit seeking to compel record production, not endlessly supplement existing proceedings that arose out of entirely separate requests. Plaintiffs' motion to amend their complaint is therefore denied. Signed by Chief Judge Beryl A. Howell on November 1, 2022. (lcbah1) (Entered: 11/01/2022)
2022-11-02Set/Reset Deadlines: Joint Status Report due by 12/1/2022. (ztg) (Entered: 11/02/2022)
2022-12-0166Joint STATUS REPORT by JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Longosz, Edward) (Entered: 12/01/2022)
2022-12-01MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 66 Joint Status Report, the following SCHEDULING ORDER to govern further proceedings: (1) By February 1, 2023, defendants shall file any supplemental brief (with defendants' [50-1] opening brief and supplemental brief not to exceed forty-five pages of combined briefing) in support of their 50 Motion for Summary Judgment, limited to addressing the foreseeable harm protected by FDA's assertion of FOIA Exemptions in this case; (2) By March 15, 2023, plaintiffs shall file any dispositive cross-motion combined with any opposition to defendants' 50 Motion for Summary Judgment; (3) By May 15, 2023, defendants shall file any reply in support of their 50 Motion for Summary Judgment combined with any opposition to plaintiffs' dispositive motion; and (4) By June 15, 2023, plaintiffs shall file any reply in support of their dispositive motion. Signed by Chief Judge Beryl A. Howell on December 1, 2022. (lcbah1) (Entered: 12/01/2022)
2022-12-02Set/Reset Deadlines: Defendants' supplemental brief due by 2/1/2023; plaintiffs' opposition to motion for summary judgment and cross-motion due by 3/15/2023; defendants' reply to opposition to motion for summary judgment and opposition to plaintiffs' cross-motion due by 5/15/2023; plaintiffs' reply to defendants' opposition to cross-motion due by 6/15/2023. (ztg) (Entered: 12/02/2022)
2023-02-0167SUPPLEMENTAL MEMORANDUM to re 50 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. FOOD AND DRUG ADMINISTRATION. (Attachments: # 1 Exhibit 1)(Caplen, Robert) (Entered: 02/01/2023)
2023-03-0768Consent MOTION to Modify the Scheduling Order by JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Attachments: # 1 Proposed Order)(Longosz, Edward) (Entered: 03/07/2023)
2023-03-0769NOTICE OF SUBSTITUTION OF COUNSEL by M. Jared Littman on behalf of All Defendants Substituting for attorney Joshua Ontell (Littman, M. Jared) (Entered: 03/07/2023)
2023-03-08MINUTE ORDER (paperless) GRANTING plaintiffs' 68 Consent Motion to Modify the Scheduling Order and MODIFYING the scheduling order issued on December 1, 2022 as follows: (1) By March 29, 2023, plaintiffs shall file any dispositive cross-motion combined with any opposition to defendants' 50 Motion for Summary Judgment; (2) By May 30, 2023, defendants shall file any reply in support of their 50 Motion for Summary Judgment combined with any opposition to plaintiffs' dispositive motion; and (3) By June 30, 2023, plaintiffs shall file any reply in support of their dispositive motion. Signed by Chief Judge Beryl A. Howell on March 8, 2023. (lcbah1) (Entered: 03/08/2023)
2023-03-08Set/Reset Deadlines: Cross-motion and opposition to 50 Motion for Summary Judgment due by 3/29/2023; opposition to cross-motion and reply to opposition to motion for summary judgment due by 5/30/2023; reply to opposition to cross-motion due by 6/30/2023. (ztg) (Entered: 03/08/2023)
2023-03-08NOTICE of Provisional/Government Not Certified Status re 68 Consent MOTION to Modify the Scheduling Order by JUDGE ROTENBERG EDUCATIONAL CENTER, INC., PAUL E. PETERSON. (Attachments: # 1 Proposed Order)(Longosz, Edward). Your attorney renewal/government certification has not been received. As a result, your membership with the U.S. District & Bankruptcy Courts for the District of Columbia is not in good standing, and you are not permitted to file. Pursuant to Local Civil Rule 83.9, you must immediately correct your membership status by following the appropriate instructions on this page of our website: https://www.dcd.uscourts.gov/attorney-renewal. Please be advised that the presiding judge in this case has been notified that you are currently not in good standing to file in this court. Renewal Due by 3/15/2023. (zbaj) (Entered: 03/08/2023)
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