Case Detail

FOIA Project Annotation: Judge John Bates has ruled that the Centers for Medicare & Medicaid Services has not yet shown that it conducted an adequate segregability analysis to justify all of it claims made under Exemption 5 (privileges). Democracy Forward Foundation submitted a FOIA request for records concerning the agency's decision-making as to the agency's Affordable Care Act outreach efforts, including its use of the consulting firms Weber Shandwick and Powell Tate. The agency disclosed records in two tranches of documents. For its first response, the agency reviewed 2,278 pages. The agency released 975 pages in full, withheld 998 pages in full, and 405 pages in part. In its second response, the agency reviewed 762 pages, releasing 70 pages in full, withholding 581 pages in full, and 174 pages were withheld in part. DFF challenged the agency's exemption claims made under the deliberative process privilege for three categories of documents �" a final report, attachments from a July 2017 meeting, and communications with a subcontractor. Bates found that all three qualified for the consultant corollary exception, extending the deliberative process privilege to consultants where they have no self-interest. Bates rejected DFF's allegations that there was no specific decision referenced in the final report and, further, it constituted the agency's final action and was not pre-decisional. However, he agreed with DFF that CMS had not shown that it conducted an adequate segregability analysis. Bates pointed out that "FOIA requires agencies to 'take reasonable steps necessary to segregate and release nonexempt information.'" He noted that "here, CMS has done too little to demonstrate to the Court that it has adequately analyzed the Final Report for segregable information." He added that "the Court has no way to evaluate, based on the current record, whether any portions of the Final Report fall into. . .other non-exempt categories." As to the meeting attachments, Bates observed that "the Vaughn indexes as to the attachments are again silent on segregability, and the declarations contain nothing more than conclusory assertions that no portions of the attachments are reasonably segregable. These sorts of bare assertions will not do where it is the agency's burden to show that it has complied with its FOIA obligations." Bates agreed with DFF that the agency had failed to show whether the consultant corollary applied to an unidentified individual who had been included on emails. However, since DFF had provided no evidence that the unidentified individual was not a consultant, Bates sent the issue back so that both parties could further brief the issue.
Issues: Litigation - Segregability analysis, Exemption 5 - Consultant privilege

FOIA Project Annotation: Judge John Bates has ruled that the Centers for Medicare and Medicaid Services has now sufficiently justified its claim that some records responsive to the Democracy Forward Foundation's request concerning the agency's Affordable Care Act enrollment outreach were protected by Exemption 5 (privileges) and that it had conducted an adequate segregability analysis. CMS had withheld records dealing with discussions between the agency and consultant Weber Shandwick claiming it was covered by the consultant corollary. Since DFF did not oppose that characterization, Bates agreed that the exchanges were privileged. In his earlier opinion, Bates found that CMS's claims of segregability were too conclusory to grant summary judgment. However, this time, he approved the agency's supplemental affidavit providing more detail. Bates noted that "this declaration is significantly more substantive and detailed than either of the previous submissions. The first declaration stated only that the Final Report was advisory, without any real elaboration." Turning to a July meeting invitation, he pointed out that "the new declaration contains significantly more detailed information than the previous declarations, which stated only that CMS had 're-examined' the July meeting invite and that any release would 'result in a chilling effect for candor and frank information [when] presenting to CMS leadership.' As with the Final Report, then, the Court concludes that CMS is entitled to the presumption of compliance with segregability obligations for the July meeting invite." Bates rejected DFF's claim that the discussions might constitute the development of secret law, Bates observed that "Democracy Forward has proffered no quantum of evidence indicating that any recommendations contained in the challenged document have been 'adopted, formally or informally,' as the agency position. Moreover, to the extent that Democracy Forward argues that CMS simply did not evaluate the documents to see whether there was any reasonably segregable opinion material, this argument runs directly counter to the statements in the new declaration that CMS did, in fact, conduct 'a line by line review' of the documents and determined that there was no material that could be meaningfully segregated â€" fact, opinion, or otherwise."
Issues: Exemption 5 - Consultant privilege, Litigation - Segregability analysis

Date Filed	Doc #	Docket Text
2018-03-20	1	COMPLAINT against CENTERS FOR MEDICARE & MEDICAID SERVICES ( Filing fee $ 400 receipt number 0090-5380966) filed by DEMOCRACY FORWARD FOUNDATION. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet, # 3 Summons, # 4 Summons, # 5 Summons)(Guzman, Javier) (Entered: 03/20/2018)
2018-03-20	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by DEMOCRACY FORWARD FOUNDATION (Guzman, Javier) (Entered: 03/20/2018)
2018-03-20		Case Assigned to Judge John D. Bates. (zsth) (Entered: 03/23/2018)
2018-03-23	3	SUMMONS (3) Issued Electronically as to CENTERS FOR MEDICARE & MEDICAID SERVICES, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zsth) (Entered: 03/23/2018)
2018-04-02	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTERS FOR MEDICARE & MEDICAID SERVICES served on 3/26/2018, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 03/26/2018., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/26/2018. ( Answer due for ALL FEDERAL DEFENDANTS by 4/25/2018.) (Attachments: # 1 Declaration)(Guzman, Javier) (Entered: 04/02/2018)
2018-04-25	5	ANSWER to Complaint by CENTERS FOR MEDICARE & MEDICAID SERVICES.(Simon, Jeremy) (Entered: 04/25/2018)
2018-05-16	6	ORDER directing the parties to propose a briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 5/16/2018. (lcjdb1) (Entered: 05/16/2018)
2018-05-17		Set/Reset Deadlines: Proposed Briefing Schedule due by 6/15/2018. (tb) (Entered: 05/17/2018)
2018-06-13	7	Joint STATUS REPORT by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Simon, Jeremy) (Entered: 06/13/2018)
2018-06-13		MINUTE ORDER: Upon consideration of 7 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall submit another joint status report and, if necessary, a proposed briefing schedule by not later than Thursday, August 23, 2018. Signed by Judge John D. Bates on 6/13/2018. (lcjdb1) (Entered: 06/13/2018)
2018-06-13		Set/Reset Deadlines: Joint Status Report due by 8/23/2018. (tb) (Entered: 06/13/2018)
2018-08-21	8	Joint STATUS REPORT by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Simon, Jeremy) (Entered: 08/21/2018)
2018-08-24		MINUTE ORDER: Upon consideration of 8 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall submit another joint status report and, if necessary, a proposed briefing schedule by not later than Thursday, September 13, 2018. Signed by Judge John D. Bates on 8/24/2018. (lcjdb1) (Entered: 08/24/2018)
2018-08-24		Set/Reset Deadlines: Another Joint Status Report and, if necessary, a Proposed Briefing Schedule is due by 9/13/2018. (jth) (Entered: 08/26/2018)
2018-09-13	9	Joint STATUS REPORT by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Simon, Jeremy) (Entered: 09/13/2018)
2018-09-13		MINUTE ORDER: Upon consideration of 9 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall submit another joint status report and, if necessary, a proposed briefing schedule by not later than Wednesday, November 7, 2018. Signed by Judge John D. Bates on 9/13/2018. (lcjdb1) (Entered: 09/13/2018)
2018-09-14		Set/Reset Deadlines: Joint Status Report due by 11/7/2018. (tb) (Entered: 09/14/2018)
2018-11-01	10	Joint STATUS REPORT by DEMOCRACY FORWARD FOUNDATION. (Grogg, Adam) (Entered: 11/01/2018)
2018-11-01		MINUTE ORDER: Upon consideration of 10 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall submit another joint status report and, if necessary, a proposed briefing schedule by not later than Monday, November 19, 2018. Signed by Judge John D. Bates on 11/1/18. (lcjdb1) (Entered: 11/01/2018)
2018-11-01		Set/Reset Deadlines: Joint Status Report due by 11/19/2018. (dot) (Entered: 11/05/2018)
2018-11-19	11	Joint STATUS REPORT and Proposed Briefing Schedule by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Simon, Jeremy) (Entered: 11/19/2018)
2018-11-19	12	SCHEDULING ORDER. See text of Order for details. Signed by Judge John D. Bates on 11/19/18. (lcjdb1) (Entered: 11/19/2018)
2018-11-20		Set/Reset Deadlines: Cross Motion due by 1/14/2019. Response to Cross Motions due by 2/11/2019. Reply to Cross Motion due by 2/25/2019. Summary Judgment motion due by 12/18/2018. Response to Motion for Summary Judgment due by 1/14/2019. Reply to Motion for Summary Judgment due by 2/11/2019. (tb) (Entered: 11/20/2018)
2018-12-17	13	Consent MOTION for Extension of Time to File Motion for Summary Judgment and for Adjustment of Related Deadlines by CENTERS FOR MEDICARE & MEDICAID SERVICES (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 12/17/2018)
2018-12-17	14	ORDER granting 13 defendant's consent motion for extension of time to file. See text of Order for details. Signed by Judge John D. Bates on 12/17/18. (lcjdb1) (Entered: 12/17/2018)
2018-12-19		Set/Reset Deadlines: Cross Motion due by 2/12/2019. Response to Cross Motiondue by 3/7/2019. Reply to Cross Motion due by 3/21/2019. Summary Judgment motion due by 1/15/2019. Response to Motion for Summary Judgment due by 2/12/2019. Reply to Motion for Summary Judgment due by 3/7/2019. (tb) (Entered: 12/19/2018)
2019-01-16	15	Consent MOTION to Stay , Consent MOTION for Extension of Time to Summary Judgment Motion Nunc Pro Tunc by CENTERS FOR MEDICARE & MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 01/16/2019)
2019-01-17		MINUTE ORDER: Upon consideration of 15 the government's consent motion to stay case and motion for extension of time to file summary judgment motion nunc pro tunc, and the entire record herein, it is hereby ORDERED that the motions are GRANTED; it is further ORDERED that this case is STAYED pending restoration of appropriations to the defendant agency; it is further ORDERED that the parties shall file a joint status report proposing new deadlines by not later than 14 days after appropriations are restored. Signed by Judge John D. Bates on 1/17/19. (lcjdb1) (Entered: 01/17/2019)
2019-02-07	16	Joint STATUS REPORT by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Simon, Jeremy) (Entered: 02/07/2019)
2019-02-07	17	ORDER lifting stay and setting briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 2/7/19. (lcjdb1) (Entered: 02/07/2019)
2019-02-12		Set/Reset Deadlines: Cross Motion due by 4/15/2019. Response to Cross Motion due by 5/2/2019. Reply to Cross Motion due by 5/20/2019. Summary Judgment motion due by 3/15/2019. Response to Motion for Summary Judgment due by 4/15/2019. Reply to Motion for Summary Judgment due by 5/2/2019. (tb) (Entered: 02/12/2019)
2019-03-15	18	MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by CENTERS FOR MEDICARE & MEDICAID SERVICES (Attachments: # 1 Proposed Order, # 2 Declaration of Hugh Gilmore, # 3 Vaughn Index to Gilmore Declaration, # 4 Supplemental Vaughn Index to Gilmore Declaration)(Simon, Jeremy) (Entered: 03/15/2019)
2019-04-03	19	Consent MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by DEMOCRACY FORWARD FOUNDATION (Attachments: # 1 Text of Proposed Order)(Grogg, Adam) (Entered: 04/03/2019)
2019-04-03	20	ORDER granting 19 consent motion for extension of time to file response/reply. See text of Order for details. Signed by Judge John D. Bates on 4/3/19. (lcjdb1) (Entered: 04/03/2019)
2019-05-09	21	Consent MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by DEMOCRACY FORWARD FOUNDATION (Attachments: # 1 Text of Proposed Order)(Grogg, Adam) (Entered: 05/09/2019)
2019-05-09	22	ORDER granting 21 plaintiff's consent motion for an extension of filing deadlines. See text of Order for details. Signed by Judge John D. Bates on 5/9/19. (lcjdb1) (Entered: 05/09/2019)
2019-06-04	23	Consent MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by DEMOCRACY FORWARD FOUNDATION (Attachments: # 1 Text of Proposed Order)(Grogg, Adam) (Entered: 06/04/2019)
2019-06-05		MINUTE ORDER: Upon consideration of 23 plaintiffs consent motion for extension of time to respond to defendant's motion for summary judgment, and the entire record herein, it is hereby ORDERED that plaintiffs consent motion is GRANTED; and it is further ORDERED that the following schedule shall govern further proceedings: plaintiffs cross-motion for summary judgment and opposition to defendants motion for summary judgment shall be filed by not later than July 1, 2019; defendants reply and opposition shall be filed by not later than July 29, 2019; and plaintiffs reply shall be filed by not later than August 12, 2019. SO ORDERED. Signed by Judge John D. Bates on 6/5/19. (lcjdb1) (Entered: 06/05/2019)
2019-06-07		Set/Reset Deadlines: Cross Motion due by 7/1/2019. Response to Cross Motion due by 7/29/2019. Reply to Cross Motion due by 8/12/2019. Response to Motion for Summary Judgment due by 7/1/2019. Reply to Motion for Summary Judgment due by 7/29/2019. (tb) (Entered: 06/07/2019)
2019-06-28	24	Memorandum in opposition to re 18 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum filed by DEMOCRACY FORWARD FOUNDATION. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Statement of Facts, # 4 Text of Proposed Order)(Grogg, Adam) (Entered: 06/28/2019)
2019-06-28	25	Cross MOTION for Summary Judgment by DEMOCRACY FORWARD FOUNDATION (Grogg, Adam) (Entered: 06/28/2019)
2019-07-29	26	REPLY to opposition to motion re 18 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum filed by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Attachments: # 1 Proposed Order, # 2 Supplemental Declaration of Hugh Gilmore)(Simon, Jeremy) (Entered: 07/29/2019)
2019-07-29	27	Memorandum in opposition to re 25 Cross MOTION for Summary Judgment (duplicate of docket entry number 26) filed by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Attachments: # 1 Proposed Order, # 2 Supplemental Declaration of Hugh Gilmore)(Simon, Jeremy) (Entered: 07/29/2019)
2019-08-12	28	REPLY to opposition to motion re 25 Cross MOTION for Summary Judgment filed by DEMOCRACY FORWARD FOUNDATION. (Grogg, Adam) (Entered: 08/12/2019)
2019-08-14	29	NOTICE OF SUBSTITUTION OF COUNSEL by Benjamin M. Seel on behalf of DEMOCRACY FORWARD FOUNDATION Substituting for attorney Adam Grogg (Seel, Benjamin) (Entered: 08/14/2019)
2019-11-26	30	NOTICE OF WITHDRAWAL OF APPEARANCE as to DEMOCRACY FORWARD FOUNDATION. Attorney Javier M. Guzman terminated. (Guzman, Javier) (Entered: 11/26/2019)
2019-11-27	31	MEMORANDUM OPINION. Signed by Judge John D. Bates on 11/27/2019. (lcjdb1) (Entered: 11/27/2019)
2019-11-27	32	ORDER granting in part and denying in part 18 Motion for Summary Judgment; denying 25 Motion for Summary Judgment. See text of Order for details. Signed by Judge John D. Bates on 11/27/2019. (lcjdb1) (Entered: 11/27/2019)
2019-11-27		Set/Reset Deadlines: The following three round briefing schedule will govern further proceedings: 1. Defendant shall file (1) a renewed motion for summary judgment and (2) a supplemental declaration addressing segregability and the documents involving Bret O'Donnell by 12/18/2019; 2. Plaintiff shall file an opposition thereto and cross-motion for summary judgment by 1/6/2020; 3. Defendant shall file an opposition to plaintiff's cross-motion for summary judgment by 1/17/2020. (jth) (Entered: 12/01/2019)
2019-12-18	33	Consent MOTION for Extension of Time to File Renewed Motion for Summary Judgment by CENTERS FOR MEDICARE & MEDICAID SERVICES (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 12/18/2019)
2019-12-20	34	MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by CENTERS FOR MEDICARE & MEDICAID SERVICES (Attachments: # 1 Proposed Order, # 2 Second Supplemental Gilmore Declaration)(Simon, Jeremy) (Entered: 12/20/2019)
2019-12-20		MINUTE ORDER: Upon consideration of 33 consent motion for extension of time, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that (1) defendant's renewed motion for summary judgment shall be filed by not later than December 20, 2019; (2) plaintiff's opposition thereto and cross-motion for summary judgment shall be filed by not later than January 13, 2020; (3) defendant's opposition to plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment shall be filed by not later than January 30, 2020; and (4) plaintiff's reply in support of its motion for summary judgment shall be filed by not later than February 13, 2020. SO ORDERED. Signed by Judge John D. Bates on 12/20/2019. (lcjdb1) (Entered: 12/20/2019)
2019-12-20		Set/Reset Deadlines: Cross Motion due by 1/13/2020. Response to Cross Motions due by 1/30/2020. Reply to Cross Motion due by 2/13/2020. Summary Judgment motion due by 12/20/2019. Response to Motion for Summary Judgment due by 1/13/2020. Reply to Motion for Summary Judgment due by 1/30/2020. (tb) (Entered: 12/20/2019)
2020-01-13	35	Memorandum in opposition to re 34 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum filed by DEMOCRACY FORWARD FOUNDATION. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Statement of Facts, # 4 Text of Proposed Order)(Seel, Benjamin) (Entered: 01/13/2020)
2020-01-13	36	Cross MOTION for Summary Judgment by DEMOCRACY FORWARD FOUNDATION (Seel, Benjamin) (Entered: 01/13/2020)
2020-01-29	37	Consent MOTION for Extension of Time to File Combined Reply and Opposition by CENTERS FOR MEDICARE & MEDICAID SERVICES (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 01/29/2020)
2020-01-29		MINUTE ORDER: Upon consideration of 37 consent motion for extension of time, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that defendant shall submit its combined reply in support of its renewed motion for summary judgment and opposition to plaintiff's renewed cross-motion by not later than February 6, 2020; and it is further ORDERED that plaintiff shall submit its reply in support of its cross-motion by not later than February 20, 2020. SO ORDERED. Signed by Judge John D. Bates on 1/29/2020. (lcjdb1) (Entered: 01/29/2020)
2020-01-31		Set/Reset Deadlines: Response to Cross Motion due by 2/6/2020. Reply to Cross Motion due by 2/20/2020. Reply to Motion for Summary Judgment due by 2/6/2020. (tb) (Entered: 01/31/2020)
2020-02-06	38	REPLY to opposition to motion re 34 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum filed by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 02/06/2020)
2020-02-06	39	Memorandum in opposition to re 36 Cross MOTION for Summary Judgment (duplicate of docket entry number 38) filed by CENTERS FOR MEDICARE & MEDICAID SERVICES. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 02/06/2020)
2020-02-20	40	REPLY to opposition to motion re 36 Cross MOTION for Summary Judgment filed by DEMOCRACY FORWARD FOUNDATION. (Seel, Benjamin) (Entered: 02/20/2020)
2020-03-30	41	MEMORANDUM OPINION. Signed by Judge John D. Bates on 3/30/2020. (lcjdb1) (Entered: 03/30/2020)
2020-03-30	42	ORDER granting 34 Motion for Summary Judgment; denying 36 Motion for Summary Judgment. See text of Order for details. Signed by Judge John D. Bates on 3/30/2020. (lcjdb1) (Entered: 03/30/2020)
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